For those keeping track, there are a number of different (yet somewhat similar) tests agencies and courts use to determine whether a worker is an employee or an independent contractor. For example, there is the Right-to-Control Test that the Internal Revenue Service uses for federal tax purposes, which is not to be confused with the …
New Ohio Law on Joint Employer Status Limits Franchisors From State Employment Laws
Relevant Background Regarding Joint Employer Status Joint employer status continues to be a major issue at all levels of the debate, including with the National Labor Relations Board (NLRB) and federal and state courts. This is highlighted by the recent conflict that arose in December 2018 with the D.C. Circuit’s decision in Browning-Ferris Industries of …
Sixth Circuit Affirms Attorneys’ Fees for “Enforcement” of Non-Compete Agreement
In a dispute involving a non-compete agreement with three former employees, the U.S. Court of Appeals for the Sixth Circuit recently upheld a district court decision to award attorneys’ fees to the employer even though there was never any final determination of liability with respect to the non-compete agreement. In Kelly Services, Inc. v. De …
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The Sixth Circuit Offers Employers Guidance on the Americans with Disabilities Act’s “Interactive Process”
On November 30, 2018, the United States Court of Appeals for the Sixth Circuit, in a published decision, offered guidance to employers regarding the Americans with Disabilities Act’s (“ADA”) “interactive process” and what conduct may render the employer liable under the ADA. In Brumley v. United Parcel Service, Inc., 909 F.3d 834 (6th Cir. 2018), …
Four Things Employers do to Make the Holidays (or Any Time of Year) Happier for Plaintiffs’ Attorneys
Employers want a happy workforce; that’s a given. But there are certain things that employers do to further that goal that might as well be a present tied with a bow for a plaintiff’s attorney after an employment relationship sours. Below are some tips to help avoid making a potential plaintiff’s attorney’s day merrier and …
Mid-Term Election Fever: Coming to a Workplace Near You
Mid-term election fever has swept the nation. Both sides of the aisle, as well as independents and libertarians in between, have campaigned harder than ever before for your vote. Smear ads and dramatic media depictions have become the norm, and many of us have become desensitized to the vitriolic turn politics has taken. Here are …
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In the #MeToo Era, Why Retaliation is the Scariest Word for Employers
With the issue of appropriate vs. inappropriate sexual conduct continuing to be the hot button topic, it is important to understand there is another related issue that remains front and center yet it remains silent, and that issue is retaliation. In terms of workplace sexual harassment as a claim in its own right, a brief …
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What Cross-Border Employers Need to Know About Applicant/Employee Background Checks
When it comes to being a cross-border employer, there are plenty of Canadian and United States laws to consider, and some of those laws regards how to conduct proper applicant/employee background checks. This piece reviews a number of background check nuisances as they exist in the United States versus Canada including: (1) How the Law …
Tips on Improving Your Hiring Process
Every employer wants to hire qualified, motivated employees. Yet, the hiring process at many companies tends to be inconsistent and often results in engaging employees that fail to excel, or to even perform within acceptable parameters. Even worse, poor practices in the hiring process can result in costly litigation from discrimination claims, not only from …
Employers Always Need to Thoroughly Explore the Smallest of Reasonable Accommodations for a Disability
A recent decision from the U.S. Court of Appeals for the Sixth Circuit provides a strong lesson in the need for employers to fully explore an employee’s request for a reasonable accommodation and to when necessary be flexible in applying certain workplace policies. In the matter of EEOC v. Dolgencorp, LLD dba Dollar General Corp., …