Knowingly or Not? When Does an Employee Agree to Arbitrate?

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There was a time, not so long ago, when federal courts refused to enforce arbitration agreements in Title VII cases, rendering arbitration agreements in the employment context virtually meaningless. Then, in 1991, Congress amended Title VII to specifically allow arbitration of Title VII claims “where appropriate.” Since that amendment, courts have interpreted Title VII’s “where appropriate” language as requiring any agreement to arbitrate a Title VII claim be entered into by the employee “knowingly.” This, of course, immediately begs the question: What dictates whether an employee “knowingly” enters into an arbitration agreement? Continue reading this entry

Top Three Risks Associated With Implementation of an “Unlimited” Vacation Policy and How to Mitigate Them

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“Unlimited” vacation (or otherwise known as nonaccrual of vacation) policies can provide a benefit with appeal to both employers and employees. For employers, providing an “unlimited” vacation benefit can alleviate some of the administrative and financial burden associated with promulgating and maintaining a formal vacation policy. Likewise, these policies can also be attractive to employees since they have the ability to take vacation when convenient without having to bank hours just to make it home for the holidays. However, while these policies can be a win-win for both employers and employees, they are not without some legal risk. Continue reading this entry

Transgender and Sexual Orientation Anti-Discrimination Protections — Maybe not yet the Law of the Land, but Your Policies Better Include Them

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Though most Americans do not seem to realize it, anti-discrimination legal protections in employment for transgender, gay, bisexual, and lesbian (LGBT) employees are not uniform across the U.S. In fact, the federal Employment Nondiscrimination Act, which would amend Title VII to explicitly include these protected categories, has never passed. Therefore, it is still legal to fire, discipline, or even harass employees in the many states and local jurisdictions that lack these employment law protections.

But does that reasoning really hold true? The ever-evolving state of the law in this area shows this reasoning is weak and provides strong support for employers including protections in equal employment opportunity (EEO), anti-harassment, and anti-retaliation policies for all their LGBT employees. Continue reading this entry

Joint Employer Status for Franchisors Sees Some Reprieve, but not Enough yet for Celebration

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We noted last year that, at the behest of its General Counsel Richard Griffin, the National Labor Relations Board was looking to recast the joint employer test under the National Labor Relations Act (NLRA) within the franchise model of business, and make corporate franchisors potentially responsible for alleged unfair labor practices committed by their franchisees. This significant shift was met with no small degree of concern, as a recast joint employer test would not only raise significant issues under the NLRA, but also likely portend bigger concerns in other areas as well. Against this backdrop, one might expect the Board’s next pronouncement in this area would reinforce the position taken by the General Counsel. Yet in a recent Division of Advice statement, the Board acted with some welcomed restraint. However, that advice memorandum should not be seen as cause for celebration, as it is light on analysis and does not necessarily reveal how the Board will continue to approach joint employer questions within the franchise model going forward. Continue reading this entry

Federal Contractors Should Keep Focus on Compliance for Hiring Veterans

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While recent United States Department of Labor figures show the unemployment rate of veterans is trending below the national unemployment average, unemployment of younger veterans who have served since 9/11 still exceeds the national average. As such, the Department of Labor continues to focus on affirmative action requirements to promote veterans’ hiring. Federal contractors and subcontractors must ensure they are complying with their affirmative action obligations to employ veterans. Earlier this year, the Office of Federal Contract Compliance Programs (OFCCP) provided additional compliance guidance under the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), including what information contractors must solicit from protected veterans at the pre-offer and post-offer stages of the application process. In addition, OFCCP just released revised hiring benchmarks for veterans’ hiring. Continue reading this entry