UPDATE: WILL THE EEOC PROPOSAL OF PAY DATA COLLECTION COMBAT PAY DISCRIMINATION?

On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a revised proposal to expand data collection through its Employer Information Report (“EEO-1”). Through EEO-1 reports, the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) have been able to identify possible discriminatory practices and conduct pay discrimination investigations through the race, gender, ethnicity, sex, and job category pay data collected from employers across the country. Read More »

COLLISION AT THE CORNER OF INTOXICANTS AND TESTING

Let’s say that one of your employees gets in an accident at work while performing his or her usual job duties. The employee is injured, and you want to know whether to test the employee for intoxicants. After all, you have a substance use policy, and don’t want to face a lawsuit or administrative claim alleging that you are responsible for the accident. Can you require the employee to be tested for intoxication? Read More »

YELP “KNOWS JUST THE PLACE” TO COMPLAIN, EXCEPT FOR ITS EMPLOYEES.

Yelp’s recent advertising campaign tells would-be users in search of businesses and services, “We know just the place.” Yelp provides an online forum where users can utilize star-ratings and comments to share their experiences with fellow consumers. Recently, the site has evolved into a venue for consumers to mercilessly complain about their subjectively mediocre experiences. The complaints can sometimes escalate to the point where fellow consumers won’t darken a business’s doorstep based upon its Yelp reviews. Read More »

HOW TO AVOID OVERLY-RESTRICTIVE NON-COMPETE AGREEMENTS

As employment attorneys, we are often asked by employers, “How can I protect my company from employees leaving with critical information or being poached by a competitor?” One way that employers can protect themselves is to prepare reasonable non-compete agreements that have the effect of deterring competitors and, likewise, encouraging retention amongst the workforce. There are, however, pitfalls which must be considered by employers before the execution of these non-compete agreements. Generally speaking, West Virginia courts will accept and enforce non-compete agreements that (1) are no more restrictive than required for the protection of the employer; (2) do not impose an undue hardship on the employee; and, (3) are not injurious to the public. Read More »

SEXUAL ORIENTATION DISCRIMINATION: WHAT EDUCATIONAL INSTITUTIONS NEED TO KNOW

It wasn’t that long ago when it was fairly clear that sexual orientation was not considered a protected class under Title VII. However, as we first wrote about on this blog last year, sexual orientation discrimination is an expanding legal basis of protection for all employers to be concerned about. This includes educational institutions. Read More »

THESE AREN’T THE EMPLOYEES YOU’RE LOOKING FOR: STOPPING INDEPENDENT CONTRACTORS FROM BECOMING FULL-FLEDGED EMPLOYEES

The use of independent contractors is a growing trend in the American economy, and many believe the trend is here to stay.  Independent contractors come in a variety of shapes and sizes.  Companies like Uber rely almost exclusively on independent contractors, and there has been significant increase in the use of independent contractors for a variety of duties (in nearly all industries). Read More »

EEOC ISSUES ADA AND GINA RULES APPLICABLE TO EMPLOYER WELLNESS PROGRAMS

On May 17, 2016, the U.S. Equal Opportunity Commission (EEOC) issued an ADA Final Rule amending applicable regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (ADA), and a GINA Final Rule, under Title II of the Genetic Information Nondiscrimination Act (GINA), clarifying how the ADA and GINA Rules apply to employer wellness programs.  In addition, the EEOC issued a Q & A document for each new rule, ADA Rule Q & A and GINA Rule Q & A, addressing key questions about each rule’s applicability and implementation. Read More »

TRANSGENDER & SEXUAL ORIENTATION DISCRIMINATION UNDER TITLE VII

On May 13, 2016, the Department of Labor (“DOL”) and the Department of Education (“DOE”) issued a joint directive to school districts nationwide titled the “Dear Colleague Letter on Transgender Students.”  The correspondence “summarizes a school’s Title IX obligations regarding transgender students and explains how the [DOE] and the [DOL] evaluate a school’s compliance with these obligations.”  The letter makes clear that “[a]s a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.”  (Emphasis added).  While the information applies directly, through Title IX, to school districts, private employers on a much broader scale must also be cognizant of the new interpretation of “sex” discrimination.  Read More »

GREEN v. BRENNAN: EMPLOYEE’S RESIGNATION STARTS THE STATUTE OF LIMITATION FOR CONSTRUCTIVE DISCHARGE CLAIMS

This past Monday, the U.S. Supreme Court ruled 7-1 in Green v. Brennan that the limitations period for filing a constructive discharge claim under Title VII begins to run on the date the employee gives notice of his intent to resign, not when the underlying discriminatory action occurred. Read More »