Recent Case Reminds Companies That, Though Much Embattled, Independent Contractor Classifications Can Be Valid

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The dividing line between employees and independent contractors has been a hot topic in employment law for several years. In addition to the interest the federal government has taken in possible misclassification of employees, employers can also be subject to civil suits under the Fair Labor Standards Act (“FLSA”) and/or state employment law. In fact, litigation related to the FLSA has increased dramatically in the last few years. However, a New York federal court recently threw out a class action claim under the FLSA and the New York Labor Law (“NYLL”), giving some indication that while independent contractor challenges are notoriously difficult for employers to prevail upon, when a business is careful to observe the formalities and necessities of the independent contractor relationship, court still recognize its validity. Continue reading this entry

Ch Ch Ch Ch Changes: New VETS-4212 Report Means More Changes for Federal Contractors

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Ch-ch-ch-ch-changes. David Bowie’s familiar refrain has become the motto of federal contractors everywhere as they struggle to keep pace with the numerous regulatory changes and enforcement initiatives currently being advanced by the Office of Federal Contract Compliance Programs (“OFCCP”) and other Department of Labor (“DOL”) divisions. As previously reported, amended regulations regarding affirmative action obligations relative to protected veterans and individuals with disabilities took effect in March 2014. Since that time, contractors have been bombarded with numerous executive orders and proposed rules mandating an increase in the minimum wage paid by certain covered contractors, requiring transparency in compensation and prohibiting retaliation against employees who discuss compensation, requiring the collection of summary compensation data, prohibiting contractors from discriminating on the basis of sexual orientation and gender identity, and requiring contractors to identify labor and employment law violations. Now federal contractors are faced with yet another change. Continue reading this entry

EEOC’s Changed Conception of Pregnancy Spawns New Litigation — and Important Reminders for Employers

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Earlier this year, we noted that that the Equal Employment Opportunity Commission (“EEOC”) issued somewhat controversial enforcement guidance regarding pregnancy discrimination. It has now become evident that this enforcement guidance was a precursor of what was to come, as the EEOC has just filed two new lawsuits alleging pregnancy discrimination. According to its press releases, one suit alleges an employer terminated a farm worker shortly after she disclosed she was pregnant, citing fears for her safety and liability even though the employee’s doctor had cleared her to perform the job without medical restrictions. The other suit alleges an employer terminated two employees after learning they were pregnant; the EEOC noted that the owner allegedly made “negative comments” about the pregnancies. This new litigation reiterates the EEOC’s increased focus on pregnancy discrimination claims; it has filed several other pregnancy discrimination lawsuits in the last few months, and the EEOC has filed over 45 lawsuits involving pregnancy discrimination since 2011. Continue reading this entry

When You Wish Upon a Scheduling Accommodation, Dreams Come True…

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The obligation for an employer to generally make scheduling accommodations to enable an employee to follow the basic tenets of his or her religious faith is a well-established requirement under Title VII’s anti-discrimination provisions. For example, employers are generally required to accommodate a request by a Catholic employee for a schedule change so that he can attend church services on Good Friday. With that said, employers are not required to make such an accommodation if it causes “undue hardship” – meaning causes “more than ordinary” increased administrative costs, diminished efficiency in other jobs, infringement on other employees’ job rights or benefits, impaired workplace safety, or requirement that co-workers carry the accommodated employee’s share of potentially hazardous or burdensome work. Continue reading this entry

Court Dismisses EEOC’s Controversial Lawsuit Challenging Standard Provisions in Separation Agreements

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Earlier this year, the EEOC brought a lawsuit in federal court in Illinois claiming that the severance agreement used by a nationwide retail pharmacy in connection with the terminations of hundreds of employees unlawfully restricted the rights of these employees under Title VII to file charges of discrimination with the EEOC and to cooperate in EEOC investigations. As we noted in response to the concern that many employers shared regarding the attack on standard separation agreement provisions, the case in Illinois is just one of a number of recent suits brought by the EEOC in its attempt to challenge the enforceability of separation agreements that contain routine provisions used by many employers in their separation and settlement agreements. These provisions include nondisparagement and confidentiality clauses and promises by the employee not to bring suit against his/her employer. Continue reading this entry