picketAn employee was caught on video saying to black employees, “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.” The company had a strict anti-harassment policy. So, after learning about the comments, the company fired the employee.

So, what would compel an Administrative Law Judge to require that the company reinstate him? Continue reading

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In March 2014, President Obama announced (here) that he would seek to revamp the Fair Labor Standards Act as it applies to overtime, “particularly for executive, administrative, and professional employees (often referred to as ‘white collar’ exemptions).” You can also read my post about the President’s announcement here.

And yet, here we are over a year later and the Department of Labor has yet to issue proposed regulations for public comment — let along the final updated regs. Continue reading

Yesterday, on the heels of the Supreme Court’s decision in Young v. UPS, Senator Bob Casey (D-PA), brought the Pregnant Workers Fairness Act back to the Senate. The Act, which is modeled after the Americans with Disabilities Act, makes it an unlawful employment practice for employers to: Continue reading


Caitlyn Jenner got the cover of Vanity Fair and a million new Twitter followers shortly after confirming that she was no longer Bruce Jenner. So, by riding that wave with a timely blog post, I should at least get page 5 — above the fold — in the latest edition of “Employment-Law Blog Hunks,” the one you all read for the articles.

(Actually, I will be on Knowledge@Wharton’s daily show on SiriusXM channel 111 – Business Radio Powered by The Wharton School today from 10-12 EDT, as a follow-up to yesterday’s post, discussing Monday’s Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc.)

Now, before my ego explodes like a baseball off of Giancarlo Stanton’s bat, let’s revisit the issue of transgender employees and restroom access. Continue reading

Holy crap. Literally.

A Texas church is now about $75,000 lighter in the wallet after a federal judge determined that having and enforcing a “no pregnancy in the workplace policy,” which prohibited the continued employment of any employee who became pregnant, violates Title VII of the Civil Rights Act of 1964. That’s the law that prohibits discrimination based on pregnancy. Yeah, it says it right there.

Here’s more on the decision from the EEOC’s press release.

At some point in our careers, as lawyers and HR professionals, we field the question, “Can I require a pregnancy employee to stop working, for the safety of either the employee or fetus?” To this, I respond that you treat a pregnant employee as you would anyone else. That is, if she is willing and able to perform her job successfully, then, under Title VII, you cannot force her to stop working.




Here they are:

Now, I haven’t run my full dork analytics on these jawns. However, just by eyeballing them, I can see that the Department of Labor has finally acknowledged a little statute called the Genetic Information Non-Discrimination Act*** slow clap *** While the forms don’t contain the full GINA safe-harbor language, the DOL does remind both employers and health care providers to comply with GINA.

(And, hey, y’all! If you notice any other changes in the new forms, hit me up in the comments below).

You don’t have to use these forms verbatim; that is, you can tweak them — provided that you still comply with the FMLA (e.g., by spelling out the safe harbor). But, if you are inclined to use the DOL’s FMLA forms, ditch the old ones that expired in February, and use these.


I’ll even treat. Ok, it’s free.

Seriously, if you don’t yet have plans today for lunch (or, for you in the West, breakfast, or whatever it is you do out there at 9 am), register here for a free SHRM webcast entitled “FLSA: Stay Safe Now and in the Future.”

It’ll be Wage and Hour 101, a great offering for HR generalists and others who need to learn (or brush up on) the FLSA basics, and don’t mind being lectured by a blogging employment lawyer in his mismatched socks and pajamas. In this webcast, you’ll learn best practices for employee classification, wage and hour compliance, and recordkeeping. You’ll also get advice for conducting self-audits of your company’s practices and what to expect from the Department of Labor when regulations are issued.

See you in a few hours…