Employment law is constantly evolving and changing to keep up with the evolving workforce and work-related issues. For example, in the last year, we have seen a changing landscape focused on gender bias and discrimination with the Me Too and Times Up movements. While we will continue to see claims, charges, and lawsuits related to …
Avoiding Claims of Citizenship and National Origin Discrimination When Interviewing, Hiring, and Onboarding Foreign Workers
It is illegal to discriminate on the basis of citizenship or national origin in recruiting, hiring, onboarding, or employing workers. Title VII of the Civil Rights Act of 1964 (“Title VII”) as well as the Immigration Reform and Control Act (“IRCA”) impose penalties on employers engaging in discriminatory employment practices. While prohibitions against citizenship and …
Michigan Court of Appeals Holds That Medical Marihuana Act Does Not Prohibit Employers from Rescinding Offers of Employment After Positive Tests
On February 19, 2019, the Michigan Court of Appeals held that an employer does not violate Section 4 of the Michigan Medical Marihuana Act (“MMMA”) when it rescinds a conditional offer of employment based upon a positive drug test. In Eplee v City of Lansing, unpublished opinion per curiam of the Court of Appeals, issued …
The Top 5 Things to Know if You Are New to 401(k) Benefits Administration
As an advisor to many 401(k) plan sponsors, I have been asked occasionally what advice I would give to a person who is relatively new to retirement plan administration. While some aspects of administration may only be learned through experience, here are my top 5 things to understand about plan administration. 1. Identify the service …
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The IRS and the FICA, FUTA and Federal Income Tax Traps for Employers with Non-Resident Alien Employees
With all of the payroll complexities that employers face, it is no surprise that a special set of rules that applies to only a small category of employees is frequently overlooked. Often, to the surprise of payroll and human resources staff, special Federal Insurance Contributions Act (“FICA,” composed of Social Security and Medicare taxes), Federal …
NLRB Focuses on “Entrepreneurial Opportunity” to Return to Pre-Obama Board Independent Contractor Test
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 …
Determining Eligibility for the Employer Credit for Paid Family and Medical Leave
Section 45S of the Internal Revenue Code (“Code”), added to the Code by the Tax Cuts and Jobs Act of 2017, establishes a general business credit for an employer who provides paid family and medical leave to qualifying employees. The credit would partially offset the cost of the paid leave, however, it is available only …
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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), …