A Cautionary Tale That Context Matters


In the shifting landscape of employment law, a recent case illustrates the need to apply context and consider all the circumstances – even when it looks like a general rule applies. In this particular case, involving race and national origin discrimination, the District of Columbia Circuit Court of Appeals changed its mind – reversing its own decision and reversing summary judgment for the United States Department of Housing and Urban Development, which was the employer in this case.

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DHS Issues New Version of Form I-9 - Effective on September 18, 2017


The Department of Homeland Security (DHS) has issued yet another update to the Form I-9, Employment Eligibility Verification. This new version becomes mandatory for use with new hires and reverifications as of September 18, 2017.  This is the thirteenth revision of Form I-9 in the thirty years since the form was first required. The good news for employers is that the 2017 changes are more modest than other recent revisions.

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Off-Duty Emails May Be Compensable (or Not)


After living with the reality of after-hours work emails, texts and cell phone calls for so many years, no one should be surprised that the Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) requires employers to pay non-exempt employees for all overtime hours worked – including any overtime spent emailing, texting or on calls from mobile electronic devices.  And, it goes without saying that employers are liable for the failure to make these required overtime payments whether the employers have actual or constructive knowledge of the employees’ overtime.  For example, let’s say an employer maintains a written policy forbidding employees from working any overtime by emailing, texting and cell phone calls.  Nevertheless, the employer receives and accepts an assignment from an employee submitted by email after hours.  However, due to the prohibition against after-hours emails, the employee generally does not submit for overtime.  In such a situation, the employer cannot avoid liability for the failure to pay the employee overtime because it knew the work was performed.  Just because the employee did not request overtime pay does not excuse the obligation to pay.  Rather, where an employer accepts the benefit of an after-hours email, the employer is deemed to have constructive knowledge of the overtime and is, therefore, required to pay for it whether or not the time is submitted for payment by the employee.    Continue reading this entry

Multiple Choices: Compliance Considerations in the Shifting Landscape of Pre-Employment Testing


In recent years, the landscape of pre-hire employment screening tests has rapidly evolved. Employers throughout the U.S. are facing shrinking applicant pools as the labor market tightens.  As a result, many employers are now looking at personality and psychological tests to find the best fitting applicants. While the individual tests may vary, these tests often involve a series of questions requiring job seekers to “agree” or “disagree” with certain statements, and then generate a score based on their answers.

As we have previously detailed, any pre-employment testing can be rife with legal risk and, given the potential for Equal Employment Opportunity Commission (EEOC) enforcement actions and class action lawsuits, employers who implement personality or psychological testing as part of their employee hiring process should ensure that they are not buying a class action discrimination lawsuit.

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NLRB: Employer Should Not Have Asked an Employee How Things Were Going During a Union Campaign


Employers must tread carefully when communicating with employees during union organizing campaigns. A seemingly innocuous question can violate the National Labor Relations Act’s (NLRA) prohibition on employers soliciting grievances during a union organizational campaign and accompanying the solicitation with a promise, express or implied, to remedy such grievances.  However, it is not always clear what type of question or statement constitutes soliciting or promising to remedy grievances.

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