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May 2017 Newsletter

It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] ...
Bill O’Reilly’s (alleged) lewd comments and inappropriate come-ons may have finally caught up to him and his employer, Fox News. I don’t, however, want to focus my attention on the salacious allegations, which are just that, allegation. Instead, I’d like to focus on Fox News’s response to the allegations, as to why it has so dragged its feet to do anything in response. I’ll let John Oliver explain only as he can. Fox News’s full...
DEAR READERS: Before you accuse me of legal malpractice, I would like to remind you that Saturday was April 1st.   Habit 1: Discriminate, retaliate, harass — have a ball! There’s a new sheriff in town, with a more employer-friendly, compliance-assistance-oriented U.S. Department of Labor (we think) and the nullification of burdensome regulations like the gone-and-not-lamented Fair Pay and Safe Workplaces Rule. That means...
There may not be a more toxic combination in the land of Human Resources: a poorly performing employee and an untrained boss who just can’t keep his mouth shut. The latest edition involves Debby and her boss, Jason. I can’t tell precisely what Debby did for her employer, Wells Fargo, but it’s safe to say she interacted with a number of Wells Fargo’s clients and had a sales quota. That’s enough background for this story because it is ...
House and Senate Republicans have introduced legislation — the Working Families Flexibility Act of 2017 — that would amend the Fair Labor Standards Act to allow private sector employers to provide “comp time” to employees in lieu of overtime pay. I’ve read the House version of the bill, and I’m having a hard time finding anything to dislike. A few weeks ago, I said that I thought the FLSA needed to be updated to better...
Earlier this month, the EEOC and Orion Energy Systems settled a case pending in a Wisconsin federal court in which the EEOC alleged that the company’s wellness plan violated the Americans with Disabilities Act (ADA). This case goes back to the spring of 2009 when an employee was forced to pay 100% of her group health insurance premium because she refused to submit to a “health risk assessment” (HRA) during open enrollment.  ...
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