It all began when the Union Pacific Railroad told employee Perry Hopman, a combat veteran, on two separate occasions that he could not allow his service dog – a 125-pound Rottweiler named Atlas – to accompany him to work to help him with his PTSD. Hopman received his diagnosis after an 18-month tour of duty …
Loaded Questions: Are Noncompetition and Nonsolicitation Clauses Really Enforceable in Michigan?
As an employment lawyer, there are a number of questions I frequently hear from clients and colleagues. One of the most common ones is, “I thought noncompetes weren’t really enforceable. Is that true?” This question takes many forms. For example: Employer Client: “I don’t want to prevent someone from working, so I just have my …
The DOL to Bring Back the 80/20 Rule for Tipped Employees with an Additional 30-Minute Rule
In an effort to “undo” the Department of Labor’s (“DOL”) actions under the Trump administration, on June 23, 2021, the agency published a Notice of Proposed Rulemaking (“NPRM”), revising how it will regulate the minimum wage pay of tipped employees. Under the Fair Labor Standards Act (“FLSA”), employers must pay non-exempt hourly employees a minimum …
Are Mandatory Vaccinations Included in Back to “Normal”?
As life begins to return to some semblance of “normal” (i.e., what it was like before terms like “aerosol droplets,” “fomite,” “herd immunity,” and “PCR tests” were part of our daily lexicon) employers are faced with difficult questions about what a return to “in-person” work looks like. Atop the list is vaccinations, and whether as …
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The Bankruptcy Code’s Automatic Stay Is Not So Automatic for DOL Wage and Hour FLSA Enforcement Actions
The U.S. Bankruptcy Code (the “Code”) § 11 U.S.C. § 362(a)(1) provides that when a party files for bankruptcy, an automatic stay is triggered. However, it turns out that there are limitations to the type of cases that these automatic stays extends, and in the employment context, this may not necessarily include wage and hour …
PERFORMANCE OF REGULAR JOB DUTIES AS PROTECTED ACTIVITY FOR DISCRIMINATION CLAIMS
Courts across the country have ruled differently regarding what is protected activity by human resources (HR) and equal employment opportunity (EEO) personnel to support a retaliation claim under Title VII. Several courts have held that HR and EEO personnel are not engaged in protected activity if they are simply doing the job they were hired …
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DOL Withdraws Trump-Era Independent Contractor Rule
Two weeks before former President Trump left office, the U.S. Department of Labor (DOL) published a final rule establishing an independent contractor status test under the Fair Labor Standards Act (FLSA). The Trump-era rule was scheduled to take effect on March 8, 2021; however, under President Biden, the DOL delayed the rule’s effective date for …
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Mandating COVID-19 Vaccination Among a Union Workforce
Many employers are weighing the pros and cons of mandating that their employees receive the COVID-19 vaccine as a condition of continued employment. In a non-union environment, mandating the vaccine generally is permissible, so long as the employer allows for exceptions for religious or health reasons. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws at Section K, Vaccinations. This point was …
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States Relax COVID-19 Restrictions on Businesses as Summer Approaches
With summer approaching and vaccination numbers surging, the United States’ population appears more than ready to return to normalcy after over a year of COVID-19 lockdown. However, while citizens and businesses alike clamor for the economy to fully reopen, President Biden has continued to urge the states to exercise caution when lifting COVID-19 restrictions. Weighing …
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Good Faith and Fair Dealing in Canadian Employment Law
Starting in 1997, the Supreme Court of Canada (“SCC”) has rendered a series of decisions that have progressed from the imposition of a duty of good faith and fair dealing on the employer, at the time of an employee’s dismissal, towards a duty of good faith and fair dealing in the overall employment relationship. In …
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