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June 2015 Newsletter

Last year, I channelled Bill Clinton in this blog post about how courts rarely recognize a single incident or two as creating what the law deems a hostile work environment. Yeah, about that. Even a few isolated comments can create a hostile work environmentIn Boyer-Liberto v. Fontainebleu Corp. (opinion here), the full panel of the Fourth Circuit Court of Appeals concluded that two aggressive racial slurs made to an employee...
We discuss the misclassification of non-exempt employees regularly here on the blog and in our presentations at conferences and webinars, but a reader of the blog wrote me before the holiday weekend to ask about the reverse situation. The reader’s company has previously determined (correctly, we’ll assume) that some of its employees meet the “computer professionals” exemption from the Fair Labor Standards Act’s overtime requirements, while...
Male attorneys, it’s not a good idea to use the “V” word when referring to your female adversaries, and you might even be sanctioned for it. (Chill! I’m not talking about that “V” word.) Have you ever heard of the word “virilism”? Neither had I. But apparently it’s a real thing: the appearance of male secondary sex characteristics in a female. (Males can have the condition, too, but it’s usually more serious when females have it...
Five jurisdictions have laws purporting to legalize recreational marijuana use: Alaska, Colorado, the District of Columbia, Oregon and Washington, with more states considering such legislation. Does legalization negate employers’ zero tolerance substance abuse policies and disciplinary rights following a positive marijuana test result on a workplace test? No, and any answer to the contrary is misleading. Can these laws confuse employees and...
Are harassment and retaliation lawsuits all going to the jury now? Are employers doomed? Are the plaintiffs’ lawyers popping the champagne corks? Is the EEOC dancing for joy? The employment law world is abuzz about last week’s racial harassment/retaliation decision from my own U.S. Court of Appeals for the Fourth Circuit. (Many thanks to an attorney friend who emailed a copy to me the day the decision came out.) The...
Many have been surprised and appalled with the recent series of articles in the New York Times exposing the alleged mistreatment of workers at nail salons.  What struck me was how these articles should be a wake-up call for all employers, even those who do not give manicures. First, all employers should be aware of Occupational Safety and Health Administration (“OSHA”) obligations.  You do not have to be in the chemical industry in...
Is “digital native” the latest code term for “young”? A hot topic for the past few days, after an article on the subject appeared in Fortune, has been whether it’s discriminatory for an employer to specify in recruiting that it’s seeking to hire “digital natives.” A “digital native” is someone who was born into the digital world, which supposedly means people born in 1990 and later. (People born in 1990 are old enough to have jobs...
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