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The Practical Employment Law Podcast
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The Practical Employment Law Podcast

Author: Mark Chumley

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A podcast covering all aspects of labor and employment law in the United States. Attorney Mark Chumley provides practical insights into the challenges facing businesses today.
25 Episodes
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While the OSHA Emergency Temporary Standard mandating vaccines for employers with over 100 employees has dominated the news, there are two other federal mandates that impact many employers: the federal contractor rule issued via executive orders and the Centers for Medicare & Medicaid Services (CMS) Rule applicable to medicare and medicaid recipients.   In this episode, the current status of these rules will be discussed along with some thoughts on what employers should be doing right now to comply or prepare to comply with the rules.OSHA ETS: This rule has been stayed by the 5th Circuit and OSHA has agreed to take no further action toward enforcement or implementation until the courts rule on the ETS.  The challenges are now consolidated before the 6th Circuit, which has yet to issue a briefing schedule.  It is likely that even after the 6th Circuit rules, there will be additional litigation that will most likely be resolved by the U. S. Supreme Court.  For now, it seems unlikely that the ETS will go into effect as originally scheduled.  Federal Contractor Rule:  This rule requires covered employees be vaccinated by January 18, 2022 but defines fully vaccinated as occurring two weeks after the last dose of a two-dose vaccine or two weeks after the single dose so the actual deadline to have vaccinations completed in January 4, 2022.  The rule is subject to multiple challenges but to date, no stays have been issued so it appears to be going forward.CMS Rule:  The CMS rule requires covered workers to be fully vaccinated by January 4, 2022.  This means that first doses of two-dose vaccines must be received by December 6, 2021.  This rule has also been the subject of several legal challenges; like the federal contractor rule, the challenges are pending but no stays have been issued to stop the rule from going into effect on schedule.Employers weighing compliance options need to move quickly if they are covered by the federal contractor or CMS rules.  Employers covered by the OSHA ETS should take steps to prepare for compliance but need not act until the legal challenges are resolved or the stay is lifted.Listen in for additional information.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
OSHA issued its Emergency Temporary Standard (ETS) effective November 5, 2021. The ETS requires employers with 100 employees or more to require employees be vaccinated or submit to weekly testing and wear masks.  The ETS requires that covered employers begin complying by December 5, 2021 (other than testing) and sets a deadline to begin testing employees who are not fully vaccinated by January 4, 2022. The rule and related materials, including FAQs and policy templates, can be found here: https://www.osha.gov/coronavirus/ets2Employers should bear in mind that despite having a short time frame for compliance, the ETS will be subject to immediate legal challenges. This combination of urgency and uncertainty means that covered employers should make planning their approach to the ETS a high priority.In this episode, the following questions will be considered:What employers are covered?What if employee numbers fluctuate above and below 100 employees?How should companies count the employees of their related entities?What employees are covered?What are covered employers required to do?What are the requirements for employee testing?Who pays for the tests?What are the masking requirements for unvaccinated employees?What must covered employers communicate to their employees?What are the reporting and record keeping requirements?Does the ETS address state laws that prohibit vaccine mandates or otherwise contradict its requirements?You can read more about the ETS here: https://www.kmklaw.com/newsroom-publications-1105Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:OSHA COVID-19  Vaccine Rule - This week, OSHA forwarded their draft Emergency Temporary Standard to the White House Regulatory Office, meaning that the promised rule mandating vaccines for employers with more than 100 employees may be coming soon.  The immediate response to the rule when it is issued may depend on whether your business is in a state that follows federal OSHA guidelines or in a state with its own OSHA approved plan.  Here is the state by state breakdown:Federal OSHA states: Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.State OSHA plans: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.State OSHA plans (state and local government workers only): Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands.The NFL and Emails - Jon Gruden resigned as head coach of the Raiders after several inappropriate emails he sent were leaked to the media.  What can businesses learn from this situation?Cannabis - New York legalized cannabis use earlier this year including a prohibition against employment discrimination for using it off duty.  The New York Department of Labor has not issued guidance clarifying what actions employers may take.  You can find the guidance here: https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdfListen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:New OSHA Vaccine Mandate Rule – On September 9, the President announced that he is directing OSHA to issue an emergency rule requiring employers with more than 100 employees to require employees to be vaccinated or tested for COVID weekly.  At this point, no rule has been issued and there are more questions than answers but several observations are worth considering.Arbitration in California – In U.S. Chamber of Commerce v. Bonta, the Ninth Circuit overturned a lower court’s decision that a state law (A.B. 15), which prohibits employers from requiring employees to waive certain rights as a condition of employment, was in conflict with the Federal Arbitration Act.  This is significant because it means that employers in California cannot require employees to consent to arbitration as a condition of employment. Work From Home Arrangements – The EEOC has filed a federal lawsuit in Georgia over an employer’s denial of an accommodation request by an employee to work from home two days per week.  Work from home arrangements tend to be favored by the EEOC as accommodations and employers need to approach the issue with great care. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
Avoiding illegal conduct is always a good strategy for avoiding employment litigation.  However, there are many legal things that employers and managers do that can also lead to litigation.  Here are five things that often lead to employment litigation:1.            Workplace Romances – while consensual relationships in the workplace are not illegal, they often lead to litigation when they end.2.            Nepotism – giving preferential treatment to friends and family in the workplace is legal but it often leads to unfairness and drives aggrieved employees to court.3.            Not Enforcing Policies – with a few exceptions (such as EEO policies), employers are not legally obligated to enact policies or follow their policies.  Nevertheless, employers should avoid enacting policies they will not or cannot enforce.4.            Conflict Avoidance – no one likes conflict but failing to address issues, even issues that don’t seem to violate workplace rules, often leads to litigation.5.            Being a Jerk – technically, it is not illegal to be a jerk but even an equal opportunity jerk with no discriminatory animus will land you in court. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:Transgender Employee Issues – Two new cases from Illinois involve claims of discrimination by transgender employees.  In Hobby Lobby v. Sommerville, an employee was denied access to the women’s restroom and in Todd v. JB for Governor, a campaign worked claims that she was included in a reduction in force because of transphobic bias.Religious Discrimination – In Rivas v. Caesar Enterprise Services, a casino employee was terminated for refusing to work on her religion’s Sabbath day despite requesting an accommodation.  In Starkey v. Roman Catholic Archdiocese of Indianapolis, a guidance counselor at a Catholic high school brought a discrimination claim when her contract was not renewed because she was in a same sex marriage.Dress Code and Politics – The NLRB recently filed a complaint against Home Depot for discriminating against an employee who wore a Black Lives Matter slogan on his work apron.  Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
In this   episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:COVID-19 and Masks: - The CDC has issued new guidance for vaccinated individuals - what does this mean for employers?  The CDC COVID-19 Tracker is here: https://covid.cdc.gov/covid-data-tracker/#county-viewMandatory Vaccination Policies - The U.S. Department of Justice has issued an opinion on the meaning of the Emergency Use Authorization status of COVID-19 vaccines, which has formed the basis for some challenges to employers’ mandatory vaccination policies.Race Discrimination - In Miller v. Brightkey, Inc., an employee raised a concern about another employees online activity and when he did not receive an immediate response, followed up with a company wide email about the issues.In Threat v. City of Cleveland, a supervisor attempted to “promote diversity” by moving employees between shifts based on race.Disability discrimination - In Collins v. American Federation of State, County & Municipal Employees Council 962, an employee’s disability discrimination claims based on a mental health issue were bolstered by a supervisor’s comments about another employees health issues.Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me?  Well, take heart because there are a surprising number of  movies that rely heavily on  labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast. I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&E law.In this Bonus Episode:      Robocop (1987)          Content: 4 out of 5 stars;          Accuracy: 4 out of 5 stars.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:Marijuana – Virginia has joined a growing number of states legalizing marijuana despite the fact that it remains illegal under federal law.  The new Virginia law includes protections for employees who have a prescription for cannabis oil but not for other use.   Such employees cannot be subjected to adverse action for a positive drug test.  Many other states, including Ohio, expressly allow employers to take adverse action even where the employees use is legal.  Employers need to review applicable laws and carefully consider their approach to this issue.Errant email – Yet another recent case in the media underscores the dangers of the “reply all” button and the ill-advised practice of commenting on others’ appearances in the workplace.Minors and Arbitration – In a recent Kentucky case, the court held that the employer could not enforce its arbitration agreement because the employee was a minor when she signed at the beginning of her employment. Age Discrimination - An employer suffered an adverse decision in an age discrimination case after it told an employee that his termination as part of a reduction in force was because the company wanted to “rejuvenate” the team and cut costs.  Employers need to be very careful with the language they use to convey employment decision, particularly if there are potential age discrimination claims.Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
The third and final episode in the podcast mini-series - Termination Done Right - covers additional steps for employers to consider taking to minimize the damage in the event there is litigation over a termination decision.  Steps include:1.  Arbitration: In arbitration, parties agree to allow a neutral arbitrator to serve as both judge and jury and decide their dispute instead of going to court.  Courts generally enforce arbitration agreements between employers and employees but there are pros and cons for employers to consider, including:Pros:No Jury – Taking the case away from a jury and allowing a trained arbitrator to decide the case is viewed as a positive by many employers;Faster and Cheaper – In most cases, arbitration proceedings are resolved quicker than cases in court.  It is possible for arbitration proceedings to be cheaper than traditional litigation but it is not guaranteedLower Settlement Values – One issue that drives settlement value is the threat of a runaway jury verdict but when juries are removed from the equation, the settlement value of a case tends to be lower;More Privacy – While arbitration proceedings are not confidential, they are not as public as a court proceeding.Cons:Arbitration Fight – Employers may find themselves in costly court fights over the enforceability of arbitration agreements;More Weak Claims – Unlike litigation in court, there are less opportunities to dispose of arbitration proceedings prior to a hearing, meaning that weaker claims are more likely to make it to a hearing in arbitration;Costs – While arbitration has been traditionally viewed as a cheaper alternative to litigation, costs have been rising steadily over the years and some question whether the economics continue to favor arbitration;No Appeals – Unlike a court case, arbitration decisions are rarely appealable, meaning that parties may be stuck with an obviously flawed decision. Major Arbitration Providers include: American Arbitration Association (https://www.adr.org/)JAMS (https://www.jamsadr.com/)NAM (https://www.namadr.com/)CPR (https://www.cpradr.org/)FORUM (https://www.adrforum.com/)2.  Jury Waivers: Jury trial waivers require employees to waive their right to have a jury decide their employment claims; a judge decides the case instead.3.  Class Action Waivers: Class action waivers limit employees to bringing only claims on their own behalf rather than joining a class action.4.  EPLI Coverage: Employment practices liability insurance, known as EPL insurance or EPLI, provides coverage to employers against claims made by employees alleging certain employment related claims. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber 
Many employers are using or considering using smartphone apps for their employees.  In such cases, employees download an app that can be used for a variety of purposes, including employee engagement, communication, work assignments, route and delivery information and more.  While apps can be helpful, they also raise many employment law issues, including the following:1.  Reimbursement: Two states – California and Illinois - have statutes specifically requiring reimbursement for required employee cell phone use.  Several other states have statutes that arguably require cell phone reimbursement, including: Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, Pennsylvania, and District of Columbia.  2.  Wage and Hour Issues: The FLSA requires that employees be paid for all hours that the employer “suffers or permits” to be worked.  When employees have an app on their phone, it opens the door to a lot of unauthorized work time related to using the app, checking messages, etc.  App usage can also raise issues with break and meal time laws and minimum wage violations.3.  Discrimination:  If employers require the use of an app, employees must have a smartphone.  If employers do not provide the phone, it becomes a condition of employment and employers may face claims that the requirement constitutes discrimination based on legally protected characteristics related to smartphone ownership.4.  Privacy: Placing an app on a personal phone that tracks and gathers data (e.g. location) creates possible privacy issues.  Most of these issues can be addressed by obtaining authorizations from employees regarding their reasonable expectations of privacy and limiting data collection during non-work hours. 5. Safety:  Having employees who drive use an app presents an inherent risk that needs to be addressed.  Any accident that occurs due to distracted driving related to the employer’s app presents a risk of substantial liability.  Similarly, distractions caused by app use in other potentially hazardous environments should be considered as well.Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
In a surprise move on Friday (5/14), the CDC issued new guidance indicating that individuals who have been fully vaccinated no longer need to wear masks or social distance in most settings.  Several states and municipalities, including Ohio, have quickly adopted the CDC’s new approach and m ore are likely to follow.  This has left employers with a lot of questions, including:     Can I continue to require masks?     If I no longer require masks for vaccinated employees, can I ask who has been vaccinated?     Can I or should I verify the vaccination status of employees?     What issues might come up when I change the mask policy?     Do I need to involve the union in these issues?Listen to the new episode of The Practical Employment Law Podcast for insights on these questions and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
The Settlement Episode

The Settlement Episode

2021-05-0613:26

The statistics tell us that most employment law cases end in settlement.  Unfortunately, there are a lot of misconceptions about settlement and the process to reach a settlement.  In this episode, the basics of settlement will be covered.  Specific points include:When to Settle: When can parties to employment litigation settle and more importantly, when should they.How to Settle:  What are the various methods that the parties might use to reach a settlement.Settlement v. Severance: While they are often confused, they arise in different circumstances.The Older Workers Benefit Protection Act (OWBPA): This statute imposes specific, mandatory requirements on any waiver of age discrimination claims under federal law.  Despite this, employers often fail to comply.When Not to Settle: When you don’t want to - no joke, that’s a legitimate reason.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:Age discrimination - in Seiple v. Cracker Barrel Old Country Store, an employee brought an age discrimination claim and the court focused on inconsistencies between the employer’s position and the record evidence.  Retaliation - in Scalia v. F.W. Webb Co., an employer was accused of retaliation for sending emails to employees asking about their participation in a Department of Labor investigation.New DOL Guidance on Pandemic Related Issues - On April 26, 2021, the DOL launched its Essential Workers, Essential Protections Initiative to educate workers and employers about wage and hour laws.  Among the resources are FAQs about pandemic related scenarios.  You can find them here : https://www.dol.gov/agencies/whd/pandemicAge discrimination - in Huber v. Fox Valley Park District, the court considered an age discrimination claim where the employee’s performance had been characterized with words like stale and stagnant.Race discrimination - In Ibrahim v. Alliance for Sustainable Energy, LLC, a Muslim employee was terminated for unprofessional interactions with female employees but a white employee was not terminated after engaging in similar conduct.Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
The second episode in the podcast mini-series - Termination Done Right - covers proactive steps for employers to take in connection with terminations.  These steps will help employers in the event there is litigation over a termination decision.  Steps include:Reviewing Policies Related to Termination - Employers should ensure that their policies provide them with sufficient discretion to terminate employees at will without requiring multi-step discipline.  Also, policies should be periodically reviewed for consistency.Conducting Effective Investigations Before Termination - Even the most straight forward scenario should have some form of investigation to support the termination decision.  Key elements of an effective investigation include:Thorough Investigation - make sure you gather all of the facts relevant to the termination decision;The Right Investigator- the investigator will be a key witness if there is litigation so it should be someone who can be an objective, effective witness;Effective Witness Interviews - Ask thorough and complete questions, follow up where answers are vague or unclear and stop when you have learned everything you can from the witness.Thorough Documentation - If there is litigation, it may be years after the fact when managers are called on to recall an investigation.  Detailed documentation is necessary to benefit from the investigation.Documenting the Termination - The need for thorough documentation does not stop at the investigation.  The reasoning for the termination decision and the termination meeting should also be effectively documented to protect the employer if there is litigation in the future.Termination Done Right - Part 3 will cover arbitration, jury waivers and class action waivers: what are they and are they right for your business?Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
This  episode will focus on COVID-19 issues.  There have been several new developments in 2021 that impact employers’ approaches  to COVID-19.   In this episode:FFCRA Leave -  The FFCRA has again been extended on a voluntary basis so that employers can offer leave through September 30, 2021.  Employers who elect to continue offering leave need to be aware of some changes to FFCRA leave.COVID-19 Vaccinations - Last year, the EEOC issued its guidance for employers on COVID-19 vaccination policies that allows employers to require vaccinations with certain exceptions.  Several states are not considering legislation that would make mandatory vaccination policies unlawful and at least one lawsuit has been filed over a mandatory vaccination policy.Federal Unemployment Benefits - Most stats have taken the position that employees who refuse to work based on a generalized fear of contracting COVID-19 are not eligible for unemployment benefits.  In recent guidance, the U.S. Department of Labor has stated that employees may refuse to work and still be eligible for benefits if they certify that their employer is not following applicable safety guidelines, such as requiring masks and social distancing.New OSHA Program - On March 12, 2021, OSHA instituted a National Emphasis Program (NEP) related to COVID-19.  The program has several elements but most importantly for employers, it requires OSHA regional offices for focus their inspection efforts on COVID-19 and creates a list of high risk industries, businesses in which may be subject to OSHA inspections.Listen in to find out what these issues mean for your business.More information on the OSHA National Emphasis Program (NEP) regarding COVID-19 is here: https://www.osha.gov/enforcement/directives/dir-2021-01cpl-03Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
In this new podcast feature, recent cases and news from the world of Labor & Employment Law will be discussed.  In this episode:Employee on call time - in Wesley v. Experian Information Solutions, IT employees brought claims for unpaid overtime for time they were required to be on-call to answer client questions.  Rescinded job offer - in Goldfarb v. Solimine, the court considered a claim by an individual who quit a high paying job to accept another, only to have the offer withdrawn after he quit.Reasonable accommodations - in Daniel v. Walmart the court considered what steps an employee has to take to request an accommodation.Disability discrimination - in Baltz v. Ledstri Foods, the court considered the claim of an employee with good reviews who was terminated after a request for an accommodation; email exchanges between managers provided significant evidence in the case.The CROWN Act - Connecticut has recently passed a CROWN Act (“Creating a Respectful and Open World for Natural hair”) to prohibit discrimination based on ethnic hairstyles and it is not alone.  Several states have passed such laws in the past few years and many more are under consideration.Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
A significant generator of employment litigation is poorly handled terminations.  Whether your approach to litigation is to fight on principle or settle cases, a well executed termination will minimize settlement values and/or make a case more defensible.  Of course, it is impossible to eliminate the threat of litigation no matter how well you do things but over the long haul, doing terminations the right way is a sound strategy to limit exposure.This podcast mini-series - Termination Done Right - will cover the basic strategies businesses can employ to limit their exposure in employment litigation.  Part 1 of the series covers the common mistakes employers make related to termination of employment and how to avoid them.Mistake #1 - Bad Hiring:  In most cases, a bad hire is a bad employee and a bad employee will ultimately need to be terminated.  This cycle can be avoided by making good hires.  Often, it is as simple as following the hiring procedures you have in place.  Unfortunately, what frequently happens is that managers desperate to fill a spot hire the person who wants the job rather than the best person for the job.  This is a mistake - an easy way to avoid issues with termination is to hire employees that you won’t need to terminate.Mistake #2 - Timing: Employers often move too fast or too slow in the termination process.  Employees should never be terminated on the spot - managers need to gather and evaluate information and sometimes cool off before making a decision.  However, taking to long to make a decision and giving employees chance after chance can also be a mistake because it minimizes the seriousness of poor conduct or performance and makes it appear that the employer is willing to tolerate it.Mistake #3 - Poor Documentation: Here is an employment law rule - if it is not in writing, it didn’t happen.  Nowhere is this more accurate than in the context of documentation supporting a termination decision.  It is critical for employers to have complete and accurate documentation that fully supports their decision making.Mistake #4 - Poor Execution: The actual handling of the termination is another problem area for many employers and can even be the source of separate employment law claims apart from   those related to the termination decision.  Employers need to be clear and honest with employees about the reason for termination but also handle terminations as professionally and compassionately as possible.  Termination Done Right - Part 2 will cover proactive steps for employers to take to protect themselves from potential claims related to termination.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
As we start a new year, here are 5 things employers may want to consider to avoid trouble:1.  COVID-19 Plans - You probably have a plan in place but this is a good time to take stock of how it is working.  Also, employers need to consider what to do about vaccine policies as the vaccines become more widely available.  Finally, the FFCRA leave has expired as of 12/31/20 but employers may continue to offer leave through March 2021 - consider whether this makes sense for your business.2.  Independent Contractors - How is your business using independent contractors?  Are thy properly classified as independent contractors or are they employees?  Traditionally, tests focus on the level of control businesses have over workers.  On January 7, 2021, the U.S. Department of Labor issued a new final rule on this topic - https://tinyurl.com/y4p6x6qy.The new rule provides some clarification for employers but its future is not clear as it does not become effective until March after the new administration takes over.  Regardless, employers should check their independent contractors and stay tuned for more information on the new rule.3.  Exempt Status of Employees - This is a good time for employers to consider whether their employees are properly classified.  There have been a lot of changes over the past year and the bases for employee exemptions may have changed.4.  Pending Employment Litigation - January is traditionally a great month to settle cases.  If you have pending litigation, this is a good time to consider whether you can settle claims and put them behind you.5.  New Laws - Several states have passed new laws that go into effect this year - this is a good time to check if any apply to your business.  Ohio has passed one of the most significant laws, overhauling its employment discrimination law.  Three big changes are eliminating most individual liability for managers and supervisors, requiring litigants to file charges before going to court and shortening the statute of limitations for claims from 6 years to 2 years.The new Ohio law is here: https://tinyurl.com/yy9b83coComments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
The big news in the employment law world this week is the the EEOC has issued its long awaited guidance on COVID-19 vaccinations and the ADA, including guidance on mandatory vaccination policies.  You can find it here:  https://tinyurl.com/yda87e9rHere are the key points:Employers can impose mandatory vaccination policies and require their employees to get the COVID-19 vaccination.  Employee objections based on science or politics are not sufficient to avoid a mandatory vaccination policy, at least as far as the EEOC is concerned.Employers must make reasonable accommodations for employees who are unable to get the vaccination due to a disability or a sincerely held religious belief or practice.  If an employer makes an individualized determination that such an employee poses a direct threat to health and safety in the workplace that cannot be mitigated or resolved with a reasonable accommodation, the employer may exclude the employee from coming into the workplace.The fact that an employee is excluded from the workplace does not mean that the employer may automatically terminate the employee’s employment.  Rather, the employer must consider whether the employee could continue working with an accommodation, such as working remotely.Employers do not need to provide accommodations that cause an undue hardship.  In the context of an ADA accommodation, this is something the causes significant expense or problems for the employer.  In the context of a religious accommodation, this is something that causes more than a de minimus cost or burden to the employer.  Thus, the obligation to accommodate disabilities is greater than the obligation to accommodate religious belief.While the new EEOC guidance answers some questions, it leaves the most significant one unanswered: should employers require employees to get a COVID-19 vaccination?  This is a difficult question but here are five things for employers to consider:1.   What will you do about employees who refuse to comply?2.   Are you at risk if you do not mandate vaccines?3.   What will you do about government mandates?4.   Are there additional considerations for unionized workforces?5.   Are you prepared for the administrative strain?Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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