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Managing the Modern Workplace
V&E International Labor & Employment Resources

And a Happy New Year to California Employers...

Last week, we talked here about some new challenges for New York employers in the new year, and how New York was in the running to supersede California as the toughest state for employers. Alas, notwithstanding the efforts of the New York legislature, California still retains its crown as the most challenging state for employers.

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Whose Employees are They Anyway? DOL Issues New Rule on Joint Employers

Last week, the Department of Labor issued a new, final rule defining the test needed to determine joint employment status under the Fair Labor Standards Act (FLSA). The rule narrows the factors which agencies and courts should consider in finding this status, and it offers employers a certain amount of clarity on the doctrine. This adds to the continued attempt to divine the term “employee” under U.S. law that we have addressed in the past (e.g., here and here).

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  • 14
  • January
  • 2020

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One Promotion Too Far

As employment lawyers, we see all sorts of reasons for businesses deciding to terminate employees, ranging from gross misconduct to plant closures. But there is one scenario that comes up from time to time that always strikes me as a particularly unfortunate loss of talent – when a good employee gets promoted into a role they are simply not suited for.

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  • 07
  • January
  • 2020

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Caught Between a Rock (Labor Law) and a Hard Place (Employment Law)

What would you do if one morning you saw on the overtime volunteer list on your company bulletin board that an employee had handwritten across the top of the list the words “Whore Board?” I think I know: You would fire that employee, assuming you could identify who it was. However, what if this all happened in the context of a dispute over the assignment of overtime between your company, its union, and its employees? Would you still make the same choice?

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  • 02
  • January
  • 2020

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RE: Company Email Policies

As I’m sure many of you are intimately aware, communicating with coworkers via email is central to millions of employees’ roles in the modern workplace. Given email’s ubiquity, employers across the country often maintain email and communications policies in the hopes of regulating what the business email systems can and cannot be used for.

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  • 20
  • December
  • 2019

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“The First Rule of this Workplace Investigation is…”

“…You will not talk about this investigation with your coworkers.” Or at least this is the first thing that many employers have long told employees who are interviewed in workplace investigations. (Though ideally, the FIRST thing that employees should be told is that they will not be retaliated against for speaking truthfully during their interviews).

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  • 18
  • December
  • 2019

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H-1B Registration Could Reduce Costs for Employers

Getting an H-1B visa for a new employee has never been easy. Any employer who has been through the process knows that putting together an application can be time-consuming and expensive, especially if they have never sought an H-1B for that particular position. Moreover, even after paying an attorney to prepare a petition, there is no guarantee that a visa will be available because the number of H-1B petitions has almost always exceeded the 85,000 cap (take last year as an example; approximately 190,000 petitions were filed). So even if you’re naturally lucky or a lottery winner, you should be aware that there is an increasing chance that you will receive a request for additional evidence or that your petition will be denied.

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  • 12
  • December
  • 2019

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Obesity & the ADA in Employment Decision-Making

Nobody likes comments about their weight (Heaven help the person who makes one about mine), and most people have learned that weight is a subject best approached with caution. Employers, for their part, would be well-served to exercise some caution as well. Although conversations surrounding obesity may be necessary for employment decisions related to certain positions, including positions often considered “safety-sensitive,” those conversations remain fraught with opportunities for actionable statements.  

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  • 10
  • December
  • 2019

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Unfortunately, A Bit of Ebenezer Is Needed When Giving Christmas Bonuses

Although they are not as common as they once were, employees in many workplaces still expect a bonus at this time of the year, and many employers, hoping to not disappoint, give their employees something like a fixed-dollar amount or the equivalent of one week’s base pay to celebrate the holiday season. While tradition can be a good thing, when it comes to bonuses (holiday or otherwise), employers often fail to consider the effect that regular bonuses may have on a non-exempt employee’s compensation if the employee has worked any overtime during the year.

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When Poorly Performing Employees Suddenly Get Sick

You finally sit down with an employee who has performed poorly for months, and you give him or her both a detailed performance improvement plan spelling out your expectations and a time frame by which they must demonstrate substantial improvement. The very next morning, the previously healthy employee calls in sick and soon thereafter requests medical leave, supported by a doctor’s excuse, to obtain treatment for work-induced stress and depression.

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Why Is This Important?

The heritage of indigenous people in Guatemala, the right of Nigerian women to avoid being the subject of human trafficking, the working conditions of employees in northern Brazil. Besides a general wish for others to be treated fairly, why are these types of matters important to Texas companies and their Texas-based lawyers? Why does the mayor of Houston decide to issue a proclamation that recognizes an event to discuss this very issue? Why are lawyers coming from California and Virginia to address these issues? And why did the State Bar of Texas create a committee for the specific purpose of educating Texas lawyers on these issues? 

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  • 27
  • November
  • 2019

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The Problem with Non-Disparagement Clauses

“If I am going to have to pay her a severance, I want to make sure that she doesn’t go around bad mouthing me or my company,” is not an unusual plea from an employer who is parting ways with a difficult employee. The employment lawyer’s most common response to this concern is to add a non-disparagement clause to the separation agreement. While enforcement of non-disparagement clauses can be tricky, most employment lawyers will tell you that they have never had to enforce one, suggesting that the clauses do serve as effective deterrents on disgruntled former employees’ criticisms of their former employer or boss.

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Contributors

Thomas H. Wilson

Thomas H. Wilson Partner

Christopher V. Bacon

Christopher V. Bacon Counsel

Sean Becker

Sean Becker Partner

Stephen M. Jacobson

Stephen M. Jacobson Partner

Martin C. Luff

Martin Luff Counsel

Lawrence S. Elbaum Partner