Blog: Opinions & Observations

What Employers Need to Know about the Families First Coronavirus Response Act

March 26, 2020

Last week, the President signed into law the Families First Coronavirus Response Act (“FFCRA”), the first of what promises to be a number of legislative enactments addressing the current pandemic.  The FFCRA contains three specific laws that small to mid-sized employers should review: Public Health Emergency Leave, the Emergency Paid Sick Leave Act, and the Tax Credits for Paid Sick and Paid Family and Medical Leave.  According to guidance published by...

Beyond the Non-Disclosure Agreement: How to Protect Your Company’s Confidential Information

June 18, 2019

My colleague Brent Haden recently posted an insightful article about non-competition covenants. As he noted, such covenants, when properly drafted, can be enforceable.  However, many courts subject non-competes to intense scrutiny because of their effect on competition and limitation on the ability of workers to obtain employment.  Some states, such as California and Washington, have even gone as far as to refuse to enforce any non-competition agreement....

When Is an Employer Liable for an Employee's Workplace Misconduct?

June 25, 2018

This month, the Fourth Circuit Court of Appeals issued a decision addressing when employers can be held liable for the actions of their employees.  Garnett v. Remedi SeniorCare of Virginia, LLC concerned a situation where an employee went on sick leave for a day.  While she was gone, her supervisor told her coworkers that she was having gynecological surgery and, therefore, must have an STD.  The employee sued the supervisor and her employer for...

Do Employers Have to Pay Interns Overtime or Minimum Wage?

May 17, 2018

With summer approaching, employers are hearing from college students looking for internships.  In the past, the Department of Labor (“DOL”) made it almost impossible for “for profit” employers to establish unpaid internship programs that did not violate the Fair Labor Standards Act (“FLSA”).  The DOL used a rigid, six-factor test that prohibited employers from gaining an immediate advantage from the intern’s activities, which severely limited the intern’s...

Does Title VII Protect against Employment Discrimination Based on Sexual Orientation?

March 21, 2018

Most Americans are aware that Title VII of the Civil Rights Act of 1964 prevents discrimination by employers against employees “because of such individual’s race, color, religion, sex, or national origin.”  In a highly-anticipated decision, the Second Circuit Court of Appeals, which covers several northeastern states, recently overturned its own precedent and became the second federal appellate court to find that Title VII protects individuals who are...

Consult an Attorney before Making Changes to Employee Compensation to Avoid Violating FLSA

November 13, 2017

An employer in Ohio recently learned that Benjamin Franklin’s advice of “an ounce of prevention is worth a pound of cure” can be applied to employee compensation systems.  When the new owner took over the Brown Derby Roadhouse restaurant, it decided to reclassify restaurant servers as independent contractors.  In doing so, the owner implemented a “table renting” system, where the servers received no pay from the restaurant, kept all of their tips, but had...

Deciphering Who Is a Joint Employer

October 20, 2017

If your company uses contract labor or temporary staffing, recent agency actions and court decisions may have turned your company into a joint employer who is legally responsible for its contract workers’ overtime pay.  Traditionally, companies were not considered joint employers unless they had direct control over the wages and other conditions of employment of another company’s employee.  However, Obama-era agency actions significantly broadened the...

Same or Equivalent: Placing Employees Returning from FMLA Leave

May 22, 2017

On May 16, 2017, the Fourth Circuit Court of Appeals issued a written opinion addressing two issues regarding the placement of returning employees.  The Court held that employers have a choice on whether to restore an employee returning from FMLA leave to the employee’s old position or to assign the employee to an “equivalent” one, which may give employers more flexibility in making staffing decisions.Under the Family and Medical Leave Act (“FMLA”),...

Avoiding the Employee Retaliation Trap

March 07, 2017

Employers can be liable under Title VII of the Civil Rights Act of 1964 without ever actually discriminating against an employee.  For example, a Roanoke hair stylist recently brought suit against her former employer alleging that it subjected her to a hostile work environment in violation of Title VII because she was a Caucasian woman dating an African-American man and that the salon terminated her in retaliation for complaining about harassing...

The Importance of Carefully-Worded Job Descriptions - March 2016

March 04, 2016

by Jeffrey D. WilsonWhile employers are not legally required to draft job descriptions for most positions, many do anyway in an effort to define job duties. This week the Fourth Circuit Court of Appeals issued an opinion that, while not groundbreaking, serves as a reminder of how important it is to properly word position descriptions, including those used to advertise job openings.In Stephenson v. Pfizer, Inc., No. 14-2079 (4th Cir. Mar. 2, 2016), the...