So last month, I blogged about my discovery that the Maryland Code does not actually contain all the laws that have been passed, which caused me to wonder how we were supposed to comply with them. And now, I just learned that in D.C., some laws that are passed end up not being implemented after all! Wait – what?! Continue Reading A Halloween Tale: Ghosted by Laws that Are Passed But Not Implemented!

The story in Collins v. Koch Foods, Inc. begins with an office romance. A female HR manager began privately dating the plant manager in 2014. Because neither was a subordinate of the other, their relationship did not violate the original iteration of the company’s anti-fraternization policy. In 2016, the HR manager’s supervisor resigned for – wait for it – having an office romance with a subordinate! The female HR manager applied for the vacated position, at which time the HR manager and plant manager admitted to their relationship. The HR manager was ultimately passed over for the promotion (not by her boyfriend plant manager) and transferred to a different facility so that she and her paramour would not be working together. Continue Reading Female Employee Marries Coworker, Gets Fired; Husband Keeps Job, Gets Raise

As those of you who pay attention to the National Labor Relations Board know (which should be all employers, since the National Labor Relations Act applies to unionized and non-union employers alike), the issue of social media policies is an area particularly fraught with confusion. In many circumstances, the Board has found such policies – or certain provisions in such policies – to unlawfully restrict employees’ rights under the Act to communicate about the terms and conditions of their employment. Thus, we labor practitioners rabidly follow each pronouncement of the Board or its General Counsel on this issue, trying to ascertain the legal parameters of such policies. Continue Reading Wait! What Does the NLRB Think About Social Media Policies?!!!

The Department of Labor issued, on September 24, 2019, its final rule revising the salary requirements for exemption from the Fair Labor Standards Act’s mandate to pay overtime for hours worked over 40 in a workweek. The new rule increases the salary required to meet the executive, professional and administrative exemptions to $684 per week (the equivalent of $35,568 per year). The required compensation for highly compensated employees is raised to $107,432. Continue Reading DOL Issues Final Overtime Rule, Increasing Required Salary Level for Exempt Employees

Ah, the French. They have such a … cosmopolitan attitude towards sex. This was on display in a recent article that caught my eye, “Frenchman’s death during sex while on business trip a ‘workplace accident,’ court rules.” (That’s an attention-getter, isn’t it?)

According to the article, a Frenchman died of a heart attack while having sex with “a total stranger” at her home during an overnight business trip. (How tawdry! How titillating!) His employer denied responsibility for his death under the French equivalent of our workers’ compensation law, which provides compensation to employees/their estates for injury/death on the job. The employer argued that his death “occurred when he had knowingly interrupted his mission for a reason dictated solely by his personal interest, independent of his employment.” More specifically, he was no longer on a “mission” for his employer when he suffered the heart attack, which was attributable to “his sexual act with a complete stranger.” Well, that certainly seems to make sense. Sex is quite personal, isn’t it? (And I am particularly amused by the repeated emphasis on the fact that the sex was with a total or complete stranger. Would it have made a difference if he died while having sex with his wife or mistress? And is anyone else wondering if the “total stranger” was a prostitute?)

Continue Reading Death During Sex on Business Trip Was a “Workplace Accident”?!!!

As I was perusing a recently-released volume of the Equal Employment Opportunity Commission’s quarterly Digest of EEO Law (as I am sadly wont to do – really, I need some new hobbies!), I came across an interesting article, “An Overview of Common Remedies Available in Disparate Treatment Claims of Discrimination.” (Of particular note, while the Digest, as well as the article, covers only federal sector employees, we’d expect the EEOC to take the same position with regard to private sector employees.) The article sets forth the types of remedies sought by the EEOC when it finds that an federal employee or applicant has been subjected to disparate treatment discrimination (meaning that they have been individually targeted). Although the majority of the list is rather routine, it does highlight some rather interesting remedies sought by the EEOC, of which employers should be aware. Continue Reading The EEOC’s Approach to Remedies for Discrimination

Ok, I’ve been practicing law for decades, but there are still things that surprise me. And yesterday I learned something about the Maryland Code – that it actually doesn’t include all the laws! Wait – WHAT?!!!!

Now, I’ve always understood a state’s Code (also known by other names in other states, such as the Statutes or Revised Statutes or General Statutes) to be the official compilation of all the laws in the state. Each year in Maryland, the (majority Democratic) General Assembly passes legislation that is either signed by the (Republican) Governor or allowed to become law without his signature. (Sometimes he vetoes too, but his vetoes often get overridden by an aggressive General Assembly, so the bills still become law). Shortly thereafter, there’s a new version of the Code with the new laws placed into the appropriate section of the Code. Continue Reading Laws That Aren’t In the State Code?

Years ago, I wrote a blog post, “Two or More Genders? Gender Identity and the EEO-1 Form,” in which I discussed what employers should do when an employee refuses to identify as either male or female for purposes of EEO reporting. At that time, I spoke with the Office of Federal Contract Compliance Programs about their approach to this issue (which was to assign a sex based on visual identification), but was never able to get the Equal Employment Opportunity Commission to respond to me, despite multiple phone calls and emails. Well, now, the EEOC has offered some guidance on a related issue – reporting non-binary employees (those who do not identify as either male or female) on the EEO-1 Component 2 report. Continue Reading Non-binary Employees and the EEO-1 Report

In an ironic twist, a manager’s alleged attempt to protect an employee from racism resulted in a discrimination claim by that employee.

In Ikome v. CSRA, LLC, the employee hailed from Cameroon and had very dark skin. He helped his employer, an information technology services company, win a contract in North Carolina with the Environmental Protection Agency and became project manager on the contract. Within weeks, however, he was replaced as project manager by a lighter-skinned African-American coworker. In his lawsuit for color and national origin discrimination, he alleges that his manager told him that people in North Carolina are “rednecks” (The manager denied using the term, but the employee’s allegations are assumed to be true at this point in the litigation, before it goes to a jury). The employee interpreted this to mean that rednecks are racist, and a lighter-skinned person would be more acceptable to them. Continue Reading Attempt to Protect the Employee from Racism Leads to Discrimination Claim!

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The National Labor Relations Board has now addressed the use of mandatory arbitration agreements following the U.S. Supreme Court’s 2018 decision in Epic Systems v. Lewis, which upheld the enforceability of arbitration agreements containing waivers of the right to bring class or collective actions over employment-related disputes, rejecting the NLRB’s then-position that such waivers violate the National Labor Relations Act (NLRA), as discussed in our prior E-lert. Continue Reading NLRB Expands Scope of Mandatory Arbitration Agreements