The Practical Employment Law Podcast

In this, the final episode of The Practical Employment Law Podcast, I will give you my three overarching rules of employment law:1.  No Good Deed Goes Unpunished;2.  If It's Not In Writing, It Didn't Happen; and3.  Be Nice.Thanks to everyone for listening and stay tuned for a new podcast - coming soon.Intro Music by ComaStudio via PixabayOutro Music by Vivaleum via Pixabay

Terminating an employee is often a long process involving warnings and documentation of performance issues.  However, there are several scenarios that may call for immediate termination of employment.  Employers often view these scenarios as safe from an employment law perspective but there can be hidden risks.  In this episode, seven scenarios that often lead to immediate termination will be considered, including:Workplace Violence or Threats of Violence;Unprofessional or Inappropriate Conduct;Employee Theft;At-Fault Accidents;Harassment or Discrimination;Sleeping on the Job;Drug or Alcohol Use.Listen in and find out how your business can avoid problems with immediate termination scenarios.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comIntro Music by ComaStudio via PixabayOutro Music by Vivaleum via Pixabay

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including: The Pregnant Workers Fairness Act – A Texas court has enjoined enforcement of the PWFA against the state of Texas.  What does this mean for employers? COVID-19 Vaccine Cases – Two recent cases - Gibbons v. Disney and Kennedy v. PEI-Genesis - consider former employees' claims against their employers arising from vaccine mandates and employer policies relating to COVID-19. Cole v. 3 Circle Church – Can an employee who complained via  anonymous letters support a claim for retaliation?Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comIntro Music by ComaStudio via PixabayOutro Music by Vivaleum via Pixabay

Many employees today use a phone in connection with their work.  Some employers provide employees with phones and others allow or require their employees to use a personal phone.  In either case, employee phone use creates a host of potential issues for employers.  In this episode, 5 issues related to employee phone use will be considered. Issue 1: Safety; Issue 2: Trade Secrets; Issue 3: Evidence Preservation;  Issue 4: Wage and Hour Issues;  Issue 5: Employee Privacy. Listen in and find out how your business can avoid problems with employee phone use.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comIntro Music by ComaStudio via PixabayOutro Music by Vivaleum via Pixabay

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including: SpaceX v. NLRB – The NLRB issued a complaint against SpaceX and in response, SpaceX filed its own lawsuit claiming that the entire structure of the NLRB is unconstitutional. This could get interesting. Johnson v. Federal Information Systems, Inc. – In this case, an employee was discharged after making a complaint of discrimination, which sounds like a classic retaliation claim except for one key fact. Ledesma v. Orland Park Wedding Center, Inc. – What should you do if an employee discloses mental health conditions and asks for a leave of absence? Galette v. Avenue 365 Lending Services LLC – Can an employee make an accommodation request that alters their job duties? DOL Issues Industry Specific PUMP Act Guidance– Earlier this month, the DOL issued industry-specific guidance for compliance with the PUMP Act.  The recent guidance covers the restaurant and retail industries.  Prior guidance was issued for the agricultural industry and guidance for the transportation and education industries is pending.   You can find the DOL guidance here. Listen in to find out what happened with these issues and how your business can avoid problems. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comIntro Music by ComaStudio via PixabayOutro Music by Vivaleum via Pixabay

It is a new year and there is a lot going on in the world of employment law.  This episode will cover seven (7) issues to keep an eye on in 2024, including:The Future of Federal Agencies;Non-Compete Agreements;The Joint Employer Rule;The Future of the Tip Credit;The DEI Backlash;Challenges to the Gig Economy;Artificial Intelligence.Listen in and find out what to watch for in the employment law world in 2024.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this holiday episode, we take a look back at the biggest employment law issues covered on the podcast in the past year and consider whether employers have been naughty or nice.  Issues include:The NLRB's ruling on confidentiality and non-disparagement clauses in severance agreements;Non-compete agreements;The PWFA and PUMP Act;Pay Transparency Laws;Artificial Intelligence; and Legalized Marijuana.Listen in and find out whether your business has been [employment law] naughty or nice.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

With the passage of Issue 2, Ohio becomes the 24th state to legalize the recreational use of marijuana.  An even larger number of states have legalized medical marijuana use.  What does this mean for employers in Ohio and in other states that have legalized marijuana on some level.  How do these laws impact employers' efforts to maintain a drug-free workplace?Listen in and find out how your business can avoid issues with drugs in the workplace.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber 

An evergreen issue in employment law is the office romance.  It presents a minefield for employers.  In this episode, 5 points about handling office romances will be considered:Point Number 1: A consensual office romance is not illegal.Point Number 2: Workplace relationships often lead to other issues.Point Number 3: Employers may ban or curtail workplace relationships (usually).Point Number 4: Policies are important.Point Number 5: Love Contracts and Breakup Plans.Listen in and find out how your business can avoid issues with office romances.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Two new laws have gone into effect in 2023 that require many employers to change their approaches to pregnant and nursing workers.  The Pregnant Workers Fairness Act (PWFA) went into effect in June and requires covered employers to provide reasonable accommodations to a worker's known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”  The Providing Urgent Protections for Nursing Mothers Act (PUMP Act) went into effect in April and states that most employees have the right to take reasonable break time to express breast milk for their nursing child.   Covered employees must be provided with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”  A bathroom, even if private, is not a permissible location for the employer to provide for pumping breast milk.  Listen in and find out how your business can avoid issues with pregnant and nursing  employees.Documents referenced in this episode: What You Should Know About the Pregnant Workers Fairness ActFact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at WorkComments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber 

In general, a whistleblower is someone who reports illegal, immoral or unethical behavior that is going on inside an organization.  The reason why we in the employment law world care about this is because there are a great many laws that protect employees who “blow the whistle” on their employers.  This episode will cover the basics of how whistleblower claims work, what drives whistleblower claims and litigation, and takeaways for employers.Listen in and find out how your business can avoid issues with whistleblowers.Documents referenced in this episode:OSHA Enforced Whistleblower Laws

The Family Medical Leave Act (FMLA) continues to present difficult compliance issues for employers.  In this episode, four FMLA traps that may ensnare unwary employers are discussed, including:1.  FMLA Coverage Trap(s);2.  The Termination Upon Return From Leave Trap;3. The Indefinite Intermittent Leave Trap; and4.  The Futile Leave Request Trap.Listen in and find out how your business can avoid these traps.Documents referenced in this episode:DOL Opinion Letter (FMLA2023-1-A)Milman v. Fieger & Fieger P.C.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In Groff v. DeJoy, decided today (June 29, 2023), the U.S. Supreme Court clarified the standard for employers to determine what constitutes an undue burden that would permit an employer to reject an employee's request for a religious accommodation.  In doing so, the Court reconsidered the long standing de minimis standard and discussed the impact of the burden of an accommodation on an employee's co-workers.Listen in and find out how the Supreme Court ruled on these issues.Read about it here: https://www.kmklaw.com/labor-employment/u-s-supreme-court-clarifies-standard-for-workplace-religious-accommodationsComments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Most people have read about artificial intelligence in the media and many have tried out programs like ChatGPT.  Some have even used such programs at school or at work.  This raises a question of what employment law issues are implicated by the use of AI.  To find out, I asked ChatGPT the following question: “What employment law issues are raised by use of artificial intelligence programs?”  ChatGPT dutifully produced a list of seven (7) issues, which I will comment on in this episode.   Here is the list: Discrimination:  AI algorithms can unintentionally perpetuate or even amplify biases present in the data they are trained on. If AI is used in recruitment, performance evaluation, or promotion decisions, there is a risk of discriminatory outcomes based on protected characteristics such as race, gender, or age. Employers must ensure that AI systems are designed and monitored to prevent unlawful discrimination.Privacy and Data Protection: AI often requires access to vast amounts of data, including personal information about employees. Collecting, processing, and storing this data must comply with relevant data protection laws and regulations. Employers need to establish safeguards to protect employee privacy and ensure transparency regarding the collection and use of personal data.Employee Monitoring: AI technologies can enable extensive monitoring and surveillance of employees. This raises concerns about the invasion of privacy and the need to strike a balance between legitimate business interests and employee rights. Laws and regulations regarding employee monitoring, such as consent requirements and notice obligations, may apply.Job Displacement and Retraining: The adoption of AI can lead to automation and job displacement. Employment laws may come into play when determining how to handle workforce reductions, including obligations to provide notice, severance pay, and support for retraining or redeployment of affected employees.Fairness and Transparency: The use of AI in employment decisions can raise concerns about the lack of transparency and the difficulty in understanding how certain outcomes are reached. Employees have the right to understand the basis for decisions affecting their employment, and employers should ensure that AI systems are explainable and provide justifiable results.Intellectual Property: If AI programs are developed in-house, intellectual property rights may arise. Employers and employees should clarify ownership and usage rights through contracts or policies to avoid disputes over the ownership of AI-generated works.Ethical Considerations: The use of AI raises broader ethical considerations, such as accountability for AI-driven decisions, the impact on job quality, and the potential for algorithmic bias. Employers should consider the ethical implications of using AI in the workplace and establish guidelines for responsible AI deployment.Listen in to find out whether the AI generated list of concerns about AI in the workplace is valid. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

If you follow the news, you are probably aware that non-compete agreements are under attack on several levels.  This episode will consider three primary sources of  these attacks on non-compete agreements:1.  The Federal Trade Commission (FTC) Proposed Rule banning non-compete agreements;2.  The NLRB General Counsel Memorandum GC 23-08 (May 30, 2023) indicating that non-compete agreements may violate section 7 of the National Labor Relations Act; and3.  State laws banning or curtailing enforcement of non-compete agreements. See the FTC Proposed Rule  here:  https://www.federalregister.gov/documents/2023/01/19/2023-00414/non-compete-clause-ruleSee the NLRB General Counsel Memo here:https://apps.nlrb.gov/link/document.aspx/09031d4583a87168Listen in to find out more about the future of non-compete agreements.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

There are several common misperceptions about employment law that seem to persist over time -  employment law myths if you will.   In this episode, 5 common employment law myths are exploded.Myth #1 - You can protect your business from a lawsuit by not telling the employee the reason for  termination.Myth #2 - Forcing an employee to resign is better than a termination.Myth #3 - The employer and/or the employee can decide on whether the employee is paid on an hourly or salary basis.Myth #4 - Restrictive covenants are completely enforceable.   Myth #5 - The at-will employment doctrine provides protection for employers.Listen in to find out more about these employment law myths.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Like everything else, employment law and employment litigation is driven by economics.  Matters such as the cost of having dedicated human resources professionals and how attorneys are paid by plaintiffs and defendants can all have a significant role in employment litigation and litigation avoidance.  There is also the question of whether employers should buy Employment Practices Liability Insurance (EPLI) to protect themselves against potential losses.  These topics and more will be discussed in this episode.Listen in to find out more about the economics of employment law.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Workplace violence is in the news again.  It is a difficult and frightening problem that implicates several aspects of employment law.  This episode covers several thoughts on the issue of workplace violence and considers steps employers may take to lessen the risk of an incident, particularly in the context of employee terminations.Listen in to find out  how your business can avoid issues with workplace violence.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

A recent trend in labor and employment law has been the passage of pay transparency laws.  These are laws that require employers to either disclose salary ranges for posted jobs to applicants who request the information or in some cases, to all applicants in the actual job posting.   At present, there are eight states and a handful of municipalities that have passed these laws but a lot more have pending legislation so I would expect to see more laws passed in the next couple of years.   The states are: CaliforniaColoradoConnecticutMarylandNevadaNew YorkRhode IslandWashington  Massachusetts, Pennsylvania and South Carolina have pending legislation.  Several municipalities also have laws on the books, including Cincinnati and Toledo, Ohio, Jersey City, New Jersey, and a few in New York, including New York City.These laws present a problem for employers with operations in multiple states because they are not necessarily the same.  Some of the laws require disclosures in the job postings while others only require disclosures at certain points in the hiring process or if the applicant requests the information.  Another significant issue is what to do about remote workers.  The question is - if you post for a remote job, do you need to comply with the pay transparency laws in light of the fact that someone from a jurisdiction with such a law may apply.  The answer is that many of these laws are considered to apply to remote work, at least according to the enforcement agencies involved.  Employers should take some time to review their compliance strategies for pay transparency laws, particularly if they are posting for remote positions.   Listen in to find out how your business can avoid problems with pay transparency laws. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:Proposed FTC Rule Banning Noncompetes - The comment period has been extended until April 19, 2023.  What does that men for employers?NLRB Ruling in McLaren Macomb – The NLRB recently ruled that common confidentiality and non-disparagement provisions in severance agreements violate Section 7 of the National Labor Relations Act.  What do employers need to do in response?  You can read the NLRB's decision here: https://apps.nlrb.gov/link/document.aspx/09031d45839af64dHoang v. Microsemi Corp. – Does your RIF selection process leave you open to discrimination claims?Bramble v. Moody Corp. – An employee was terminated for falling for a phishing scam - was race a factor?Linde v. Envision Healthcare Corp. – What does the employee have to prove in an unpaid overtime claim under the FLSA?Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

EWA stands for earned wage access.  It is a way for employees to receive their earned wages before their regular pay day.  Basically, a third party provider is given information about time worked by the employee and pays them the amount earned right away rather than the employee having to wait for payday.   While EWA programs are gaining in popularity, they raise a host of compliance and administrative issues for employers who use them.  Potential issues arise from laws governing:Assignment of Wages;Free and Clear Payment of Wages;Direct Deposit;Unauthorized Deductions from Wages;Final Pay;Employee Privacy.Employers using or considering EWA programs  need to carefully consider all applicable laws and determine if their program is in compliance.Listen in to find out  how your business can avoid problems with EWA programs.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:FMLA Retaliation: - What constitutes “protected activity” under the FMLA?Perkins v. City of New York – In this failure to accommodate case, the Court concluded that an ineffective accommodation does not satisfy the requirements of the law.Davis v. City of Montevallo – Your employee handbook has a solid at-will disclaimer so you can't get in trouble for a termination – right?Pregnancy Discrimination – The Pregnant Workers Fairness Act goes into effect on June 27, 2023 – are you ready?Kinzer v. Whole Foods, Inc. – Is it possible for employers to enforce dress code policies?Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

The New Year is here and this episode will consider some trends from 2022 and what to expect in 2023 and beyond.  Issues covered include:1.  The COVID Gift Keeps Giving;2.  Work From Home/Hybrid Work Arrangements;3.  Arbitration Continues to Lose Ground;4.  The Gig Economy Under Attack;5.  Non-Compete Agreements Under Attack;6.  State Laws Gone Crazy;7.  More Reductions in Force Coming. Listen in to find out how your business may be impacted by these issues in 2023.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

It's the holidays and employment lawyers everywhere issue their annual advice about holiday parties.  Here are 9 thoughts for employers considering a holiday party for their employees:   1.  Alcohol is a consistent source of problems at holiday parties.  Employers should consider foregoing alcohol or taking steps to control consumption. 2.  Transportation home for employees is something employers who decide to serve alcohol must consider.3.  Communication prior to the party is a good idea – let everyone know that the rules and policies apply at the party. 4.  Managers are on duty at the party – just because it is a party, managers cannot ignore their responsibilities, particularly if they see something inappropriate happening.5.  Wage and hour issues – if non-exempt employees are required to attend the party, they must be paid.6.  The plus one – if employees are allowed to bring a guest, the approach needs to be uniform and avoid possible claims of discrimination.7.  Religion – in general, keep it secular.8.  Secret Santa – a literal minefield.9.  Skip it – it is the “bah humbug” approach but from an employment law standpoint, it has a lot to recommend it. Listen in to find out how your business can avoid problems with holiday parties.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In honor of Thanksgiving last week, today's episode will focus on eight things employers do or don't do that give plaintiffs' attorneys (attorneys who represent employees against employers) reasons to be thankful.   Number 1:        Having no documentation;Number 2:        Having inconsistent documentation;Number 3:        Not giving a reason for termination;Number 4:        Giving a false reason for termination;Number 5:        Inconsistent application of the rules;Number 6:        Management disagreement;Number 7:        Not getting the employee's side of the story;Number 8:        Bad optics. Listen in to find out how your business can avoid these problems. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

A new feature of The Practical Employment Law Podcast will be interviews of guests with insights into employment law, including attorneys, business owners and managers and  just about anyone with something interesting to say.   In today's episode, I interview author and plaintiffs' attorney Steven Mitchell Sack about his new book: FIRED! Protect Your Rights & FIGHT BACK If You're Terminated, Laid Off, Downsized, Restructured, Forced to Resign or QuitSteve has a lot of experience and great insights into the world of labor and employment law.  Steve's contact information is available on his website:  www.theemployeeslawyer.comYou can buy a copy of his book here: legalstratpub.com or on Amazon at:  https://www.amazon.com/FIRED-Protect-Terminated-Downsized-Restructured/dp/B09Y5FKBBB/ref=sr_1_1?crid=2BHQ9R60ER4EF&keywords=steven+mitchell+sack&qid=1666897332&sprefix=Steven+Sac%2Caps%2C1095&sr=8-1Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Training repayment agreement provisions (TRAPs) are a hot topic lately.  These agreements, which may be stand alone or included in a broader employment agreement,  require employees who have completed an employer provided training program to reimburse the employer for some or all of the cost of the training if they leave within a certain timeframe.  The agreements are unpopular with employees and have become somewhat controversial but courts have often enforced them against departing employees.  Are they right for your business - here are a few considerations before you set a TRAP: 1.  Does your business have a need for TRAPs?2.  Beware of unintended consequences such as difficulty recruiting and retaining employees;3.  You will probably have to go to court to enforce a TRAP and you may be counter sued;4.  Make sure the TRAP reflects reality;5.  Get professional help with TRAPs. Listen in to find out  how your business can avoid problems with TRAPs.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Today's episode will consider a couple of controversial topics.  First, the CDC recently updated its COVID-19 guidance for the workplace in some surprising ways.  Because many employers defaulted to the CDC for workplace guidance and because emotions continue to run high regarding these issues, employers should be aware of the changes.  The CDC's new guidance can be viewed here:  https://www.cdc.gov/mmwr/volumes/71/wr/mm7133e1.htmNext, there has been increased media reporting and interest in so-called reverse discrimination cases, that is cases where members of  majority groups claim to have been discriminated against.  While such cases used to be a true rarity, they are becoming more common and have even resulted in some very large awards for plaintiffs.Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Noncompete agreements are a hot topic these days. Unfortunately, many employers who have noncompete agreements in place have not taken the time to consider their strategy for enforcement.  In this episode, five thoughts about noncompete strategy will be considered, including:1.  Noncompete Agreements are usually enforceable, up to a point;2.  State laws vary - a lot;3.  In some cases, the process is the punishment;4.  Consider the cost benefit analysis;5.  Develop a big picture strategy. Listen in to find out  how your business can avoid problems with noncompete agreements.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:Sex Discrimination: - What is the "same actor" inference and how does it help employers in discrimination litigation?Delagrange v. Weaver Popcorn Manufacturing - In this recent  case involving allegations of same sex harassment and retaliation, the employer's justification for termination was not well documented.Hattabaugh v. TMS International - This wage and hour case seeking unpaid overtime serves as a reminder for employers about the importance of keeping accurate time records.Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

With courts still backed up from COVID shutdowns, mediation is a popular option to resolve litigation.  Mediation is a process where parties to a dispute hire a neutral third party to help them reach a resolution of the dispute.  It can be a particularly useful tool in employment litigation but how much do you really know about mediation and how it works?   How do you find a mediator?Who pays for the mediation?How does the process work?Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:Religious Accommodations: - Does an employer have to accommodate an employee who cannot work on Sundays and what constitutes an undue hardship.  The Third Circuit considered these issues in Groff v. DeJoy.Berling v. Gravity Diagnostics - In this recent Kentucky case, a jury awarded an employee over $450,000 when his employer ignored his request that it forego giving him a birthday party due to the employee's panic disorder and later terminated his employment.COVID-19 - Everyone wants to move on but there are still lawsuits pending.  Two recent cases  involve employee refusal to undergo weekly testing and absenteeism in part due to FFCRA leave.Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

On March 3, 2022,  the President signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  A product of the Me Too Movement, the new law allows individuals bringing sexual assault and sexual harassment claims who entered into predispute arbitration agreements or  class- or collective-action waivers  to reject those agreements and waivers and  bring those claims in court and via a class or collective action.  The law applies to any claims arising after the date of enactment.  In addition, California law as it currently stands bans all mandatory predispute arbitration agreements in employment and Congress recently passed the Forced Arbitration Injustice Repeal Act of 2022 (FAIR Act), which would also ban mandatory predispute arbitration agreements if it becomes law.  Times are uncertain for employers who rely on arbitration.  Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

The so-called gig economy is subject to a great deal of uncertainty in the labor and employment law context.  The key issue is whether workers are properly classified as employees and subject to various labor and employment laws or whether they are independent contractors with a lot of flexibility but far less legal protection.  This is not a new issue but the prevalence  and popularity of gig economy businesses  like Uber, Lyft, DoorDash and others have brought the issue into the spotlight. The traditional test for independent contractor status is multifactored and focuses on the issue of the hiring party's control over the worker.  In 2019, California passed a law adopting the "ABC Test," a simple test that classifies almost every worker as an employee.  The legal battle over that law in California remains unresolved but the same ABC Test is in the federal PRO Act, which has passed the House but not the Senate.  If it passes, the gig economy may not survive and independent contractors may no longer be an option for many businesses.  What can employers do in  the midst of all this uncertainty?  Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including: Religious Accommodation: New cases addressing employer obligations in the area of religious accommodations under Title VII are discussed as well as the EEOC's new guidance on COVID-19 vaccination accommodations, which was issued on March 1, 2022.   You can find the EEOC's complete guidance here:    https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws The new vaccine accommodation guidance begins at Letter “L” – scroll down. Social Media: The media recently reported on the termination of a longtime executive from the cosmetics company Estee Lauder after an unfortunate social media post that included a racial slur.  What can employers take from this situation and how can they avoid similar issues?   Recall Laws: The California Labor Commission recently fined a California resort over $3M for failing to recall employees who had been laid off due to COVID-19 in violation of California's Right to Recall Law.  That law requires employers in certain industries to offer re-employment to employees who lost their jobs due to COVID-19 or face stiff penalties.  And it's not just California – these laws exist in other jurisdictions as  well.Listen to the new episode of The Practical Employment Law Podcast for insights on these stories and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me?  Well, take heart because there are a surprising number of  movies that rely heavily on  labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast.I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&E law.In this Bonus Episode:     9 to 5 (1980)          Content: 4 out of 5 stars;          Accuracy: 3 out of 5 stars.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including: The NFL Discrimination Lawsuit: The NFL and three teams are being sued for discrimination in hiring and the allegations include an alleged sham interview that accidentally came to light due to an errant text message.   The Resignation of CNN President Jeff Zucker: In another major story, the president of CNN has resigned due to the disclosure of a consensual workplace relationship with another employee.   What can employers learn from these stories? Listen to the new episode of The Practical Employment Law Podcast for insights on these stories and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In honor of the famous holiday song, The Twelve Days of Christmas, this episode will cover twelve thoughts on the vaccine mandates, including:1.         Current status of the mandates; 2.         The Supreme Court's consideration of the OSHA rule;3.         Timing issues created by the OSHA rule;4.         Steps for employers before the deadlines; 5.         The costs associated with compliance;6.         Handling accommodation requests;7.         Issues with turnover;8.         Issues with noncompliant employees;9.         State and local laws;10.       Impact of mandates on smaller businesses;11.       Union issues;12.       Communication with employees.Listen to the new episode of The Practical Employment Law Podcast to find out more about these issues. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

The holidays are here again and they represent a minefield for employers.  It seems that every year the period of time from mid-November through the end of the year is guaranteed to generate employment litigation.  With that in mind, let's look to Charles Dickens' beloved character Ebenezer Scrooge to give us some holiday employment law advice on 5 topics:1.            Scheduling, Absenteeism and Tardiness2.            Holiday Parties3.            Holiday Displays4.            The Holidays Bonus5.            Termination and Adverse ActionListen to the new episode of The Practical Employment Law Podcast to find out what advice Scrooge has for you on these issues.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

While the OSHA Emergency Temporary Standard mandating vaccines for employers with over 100 employees has dominated the news, there are two other federal mandates that impact many employers: the federal contractor rule issued via executive orders and the Centers for Medicare & Medicaid Services (CMS) Rule applicable to medicare and medicaid recipients.   In this episode, the current status of these rules will be discussed along with some thoughts on what employers should be doing right now to comply or prepare to comply with the rules.OSHA ETS: This rule has been stayed by the 5th Circuit and OSHA has agreed to take no further action toward enforcement or implementation until the courts rule on the ETS.  The challenges are now consolidated before the 6th Circuit, which has yet to issue a briefing schedule.  It is likely that even after the 6th Circuit rules, there will be additional litigation that will most likely be resolved by the U. S. Supreme Court.  For now, it seems unlikely that the ETS will go into effect as originally scheduled.  Federal Contractor Rule:  This rule requires covered employees be vaccinated by January 18, 2022 but defines fully vaccinated as occurring two weeks after the last dose of a two-dose vaccine or two weeks after the single dose so the actual deadline to have vaccinations completed in January 4, 2022.  The rule is subject to multiple challenges but to date, no stays have been issued so it appears to be going forward.CMS Rule:  The CMS rule requires covered workers to be fully vaccinated by January 4, 2022.  This means that first doses of two-dose vaccines must be received by December 6, 2021.  This rule has also been the subject of several legal challenges; like the federal contractor rule, the challenges are pending but no stays have been issued to stop the rule from going into effect on schedule.Employers weighing compliance options need to move quickly if they are covered by the federal contractor or CMS rules.  Employers covered by the OSHA ETS should take steps to prepare for compliance but need not act until the legal challenges are resolved or the stay is lifted.Listen in for additional information.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

OSHA issued its Emergency Temporary Standard (ETS) effective November 5, 2021. The ETS requires employers with 100 employees or more to require employees be vaccinated or submit to weekly testing and wear masks.  The ETS requires that covered employers begin complying by December 5, 2021 (other than testing) and sets a deadline to begin testing employees who are not fully vaccinated by January 4, 2022. The rule and related materials, including FAQs and policy templates, can be found here: https://www.osha.gov/coronavirus/ets2Employers should bear in mind that despite having a short time frame for compliance, the ETS will be subject to immediate legal challenges. This combination of urgency and uncertainty means that covered employers should make planning their approach to the ETS a high priority.In this episode, the following questions will be considered:What employers are covered?What if employee numbers fluctuate above and below 100 employees?How should companies count the employees of their related entities?What employees are covered?What are covered employers required to do?What are the requirements for employee testing?Who pays for the tests?What are the masking requirements for unvaccinated employees?What must covered employers communicate to their employees?What are the reporting and record keeping requirements?Does the ETS address state laws that prohibit vaccine mandates or otherwise contradict its requirements?You can read more about the ETS here: https://www.kmklaw.com/newsroom-publications-1105Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:OSHA COVID-19  Vaccine Rule - This week, OSHA forwarded their draft Emergency Temporary Standard to the White House Regulatory Office, meaning that the promised rule mandating vaccines for employers with more than 100 employees may be coming soon.  The immediate response to the rule when it is issued may depend on whether your business is in a state that follows federal OSHA guidelines or in a state with its own OSHA approved plan.  Here is the state by state breakdown:Federal OSHA states: Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.State OSHA plans: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.State OSHA plans (state and local government workers only): Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands.The NFL and Emails - Jon Gruden resigned as head coach of the Raiders after several inappropriate emails he sent were leaked to the media.  What can businesses learn from this situation?Cannabis - New York legalized cannabis use earlier this year including a prohibition against employment discrimination for using it off duty.  The New York Department of Labor has not issued guidance clarifying what actions employers may take.  You can find the guidance here: https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdfListen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:New OSHA Vaccine Mandate Rule – On September 9, the President announced that he is directing OSHA to issue an emergency rule requiring employers with more than 100 employees to require employees to be vaccinated or tested for COVID weekly.  At this point, no rule has been issued and there are more questions than answers but several observations are worth considering.Arbitration in California – In U.S. Chamber of Commerce v. Bonta, the Ninth Circuit overturned a lower court's decision that a state law (A.B. 15), which prohibits employers from requiring employees to waive certain rights as a condition of employment, was in conflict with the Federal Arbitration Act.  This is significant because it means that employers in California cannot require employees to consent to arbitration as a condition of employment. Work From Home Arrangements – The EEOC has filed a federal lawsuit in Georgia over an employer's denial of an accommodation request by an employee to work from home two days per week.  Work from home arrangements tend to be favored by the EEOC as accommodations and employers need to approach the issue with great care. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Avoiding illegal conduct is always a good strategy for avoiding employment litigation.  However, there are many legal things that employers and managers do that can also lead to litigation.  Here are five things that often lead to employment litigation:1.            Workplace Romances – while consensual relationships in the workplace are not illegal, they often lead to litigation when they end.2.            Nepotism – giving preferential treatment to friends and family in the workplace is legal but it often leads to unfairness and drives aggrieved employees to court.3.            Not Enforcing Policies – with a few exceptions (such as EEO policies), employers are not legally obligated to enact policies or follow their policies.  Nevertheless, employers should avoid enacting policies they will not or cannot enforce.4.            Conflict Avoidance – no one likes conflict but failing to address issues, even issues that don't seem to violate workplace rules, often leads to litigation.5.            Being a Jerk – technically, it is not illegal to be a jerk but even an equal opportunity jerk with no discriminatory animus will land you in court. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:Transgender Employee Issues – Two new cases from Illinois involve claims of discrimination by transgender employees.  In Hobby Lobby v. Sommerville, an employee was denied access to the women's restroom and in Todd v. JB for Governor, a campaign worked claims that she was included in a reduction in force because of transphobic bias.Religious Discrimination – In Rivas v. Caesar Enterprise Services, a casino employee was terminated for refusing to work on her religion's Sabbath day despite requesting an accommodation.  In Starkey v. Roman Catholic Archdiocese of Indianapolis, a guidance counselor at a Catholic high school brought a discrimination claim when her contract was not renewed because she was in a same sex marriage.Dress Code and Politics – The NLRB recently filed a complaint against Home Depot for discriminating against an employee who wore a Black Lives Matter slogan on his work apron.  Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this   episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:COVID-19 and Masks: - The CDC has issued new guidance for vaccinated individuals - what does this mean for employers?  The CDC COVID-19 Tracker is here: https://covid.cdc.gov/covid-data-tracker/#county-viewMandatory Vaccination Policies - The U.S. Department of Justice has issued an opinion on the meaning of the Emergency Use Authorization status of COVID-19 vaccines, which has formed the basis for some challenges to employers' mandatory vaccination policies.Race Discrimination - In Miller v. Brightkey, Inc., an employee raised a concern about another employees online activity and when he did not receive an immediate response, followed up with a company wide email about the issues.In Threat v. City of Cleveland, a supervisor attempted to “promote diversity” by moving employees between shifts based on race.Disability discrimination - In Collins v. American Federation of State, County & Municipal Employees Council 962, an employee's disability discrimination claims based on a mental health issue were bolstered by a supervisor's comments about another employees health issues.Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me?  Well, take heart because there are a surprising number of  movies that rely heavily on  labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast. I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&E law.In this Bonus Episode:      Robocop (1987)          Content: 4 out of 5 stars;          Accuracy: 4 out of 5 stars.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:Marijuana – Virginia has joined a growing number of states legalizing marijuana despite the fact that it remains illegal under federal law.  The new Virginia law includes protections for employees who have a prescription for cannabis oil but not for other use.   Such employees cannot be subjected to adverse action for a positive drug test.  Many other states, including Ohio, expressly allow employers to take adverse action even where the employees use is legal.  Employers need to review applicable laws and carefully consider their approach to this issue.Errant email – Yet another recent case in the media underscores the dangers of the “reply all” button and the ill-advised practice of commenting on others' appearances in the workplace.Minors and Arbitration – In a recent Kentucky case, the court held that the employer could not enforce its arbitration agreement because the employee was a minor when she signed at the beginning of her employment. Age Discrimination - An employer suffered an adverse decision in an age discrimination case after it told an employee that his termination as part of a reduction in force was because the company wanted to “rejuvenate” the team and cut costs.  Employers need to be very careful with the language they use to convey employment decision, particularly if there are potential age discrimination claims.Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

The third and final episode in the podcast mini-series - Termination Done Right - covers additional steps for employers to consider taking to minimize the damage in the event there is litigation over a termination decision.  Steps include:1.  Arbitration: In arbitration, parties agree to allow a neutral arbitrator to serve as both judge and jury and decide their dispute instead of going to court.  Courts generally enforce arbitration agreements between employers and employees but there are pros and cons for employers to consider, including:Pros:No Jury – Taking the case away from a jury and allowing a trained arbitrator to decide the case is viewed as a positive by many employers;Faster and Cheaper – In most cases, arbitration proceedings are resolved quicker than cases in court.  It is possible for arbitration proceedings to be cheaper than traditional litigation but it is not guaranteedLower Settlement Values – One issue that drives settlement value is the threat of a runaway jury verdict but when juries are removed from the equation, the settlement value of a case tends to be lower;More Privacy – While arbitration proceedings are not confidential, they are not as public as a court proceeding.Cons:Arbitration Fight – Employers may find themselves in costly court fights over the enforceability of arbitration agreements;More Weak Claims – Unlike litigation in court, there are less opportunities to dispose of arbitration proceedings prior to a hearing, meaning that weaker claims are more likely to make it to a hearing in arbitration;Costs – While arbitration has been traditionally viewed as a cheaper alternative to litigation, costs have been rising steadily over the years and some question whether the economics continue to favor arbitration;No Appeals – Unlike a court case, arbitration decisions are rarely appealable, meaning that parties may be stuck with an obviously flawed decision. Major Arbitration Providers include: American Arbitration Association (https://www.adr.org/)JAMS (https://www.jamsadr.com/)NAM (https://www.namadr.com/)CPR (https://www.cpradr.org/)FORUM (https://www.adrforum.com/)2.  Jury Waivers: Jury trial waivers require employees to waive their right to have a jury decide their employment claims; a judge decides the case instead.3.  Class Action Waivers: Class action waivers limit employees to bringing only claims on their own behalf rather than joining a class action.4.  EPLI Coverage: Employment practices liability insurance, known as EPL insurance or EPLI, provides coverage to employers against claims made by employees alleging certain employment related claims. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber 

Many employers are using or considering using smartphone apps for their employees.  In such cases, employees download an app that can be used for a variety of purposes, including employee engagement, communication, work assignments, route and delivery information and more.  While apps can be helpful, they also raise many employment law issues, including the following:1.  Reimbursement: Two states – California and Illinois - have statutes specifically requiring reimbursement for required employee cell phone use.  Several other states have statutes that arguably require cell phone reimbursement, including: Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, Pennsylvania, and District of Columbia.  2.  Wage and Hour Issues: The FLSA requires that employees be paid for all hours that the employer “suffers or permits” to be worked.  When employees have an app on their phone, it opens the door to a lot of unauthorized work time related to using the app, checking messages, etc.  App usage can also raise issues with break and meal time laws and minimum wage violations.3.  Discrimination:  If employers require the use of an app, employees must have a smartphone.  If employers do not provide the phone, it becomes a condition of employment and employers may face claims that the requirement constitutes discrimination based on legally protected characteristics related to smartphone ownership.4.  Privacy: Placing an app on a personal phone that tracks and gathers data (e.g. location) creates possible privacy issues.  Most of these issues can be addressed by obtaining authorizations from employees regarding their reasonable expectations of privacy and limiting data collection during non-work hours. 5. Safety:  Having employees who drive use an app presents an inherent risk that needs to be addressed.  Any accident that occurs due to distracted driving related to the employer's app presents a risk of substantial liability.  Similarly, distractions caused by app use in other potentially hazardous environments should be considered as well.Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In a surprise move on Friday (5/14), the CDC issued new guidance indicating that individuals who have been fully vaccinated no longer need to wear masks or social distance in most settings.  Several states and municipalities, including Ohio, have quickly adopted the CDC's new approach and m ore are likely to follow.  This has left employers with a lot of questions, including:     Can I continue to require masks?     If I no longer require masks for vaccinated employees, can I ask who has been vaccinated?     Can I or should I verify the vaccination status of employees?     What issues might come up when I change the mask policy?     Do I need to involve the union in these issues?Listen to the new episode of The Practical Employment Law Podcast for insights on these questions and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber