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

Responding to #MeToo Part I: Building an Effective Anti-harassment Training Program

The #MeToo movement presents unique challenges not only for human resources managers and general counsel, but also for boards that are increasingly recognizing the reputational damage that can be caused by workplace complaints. What is the best way to prevent workplace harassment from happening in the first place? In this video, Chris Bacon, describes three fundamental components of all effective anti-harassment training programs: they have support from upper management, are structured to be interactive, and promote empathy as a way of discouraging people from feeling threatened by corporate diversity efforts. 

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  • 01
  • May
  • 2018

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Drugs and Guns

Worker shortages, relaxed views on drug use in the context of an opioid abuse epidemic, and issues related to gun violence are creating new challenges in workplaces in the United States. Record-low unemployment and increasingly limited immigration options are making qualified candidates more difficult to find. The movement to legalize marijuana has taken hold in America; despite marijuana’s use remaining a federal crime, there are nine states and Washington D.C. that have legalized its use. And concerns over both workplace gun violence and individual gun rights have intensified. These cultural and economic factors present challenges to employers seeking to respect individual rights while maintaining safe and lawful workplaces.

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  • 24
  • April
  • 2018

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DOL Clarifies Travel Time Regulations

One of the more complicated issues for payroll managers is determining when they must pay a non-exempt employee for their travel time. The rules for single day trips have always been fairly simple; most travel time (except ordinary home-to-work travel) is usually compensable, except for travel from an employee’s home to the airport, in which case, the clock starts when the employee arrives at the airport and stops when the employee returns to the airport in their home city. If the employee’s flight is delayed, the time is compensable.

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  • 19
  • April
  • 2018

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Title VII Protection for Transgender Status and Sexual Orientation

Several circuit courts — including, most recently, the Second Circuit in Zarda v. Altitude Express, Inc. — have decided whether sexual orientation and transgender status are protected characteristics under Title VII (we discussed one of those decisions here). Courts in our neck of the woods, however, have offered little guidance in this area so far. Although the Fifth Circuit (covering Texas, Louisiana, and Mississippi) has yet to weigh in on these issues, a Texas federal court recently issued the first decision in the state indicating that sexual orientation may be protected (Title VII’s applicability to transgender status has been considered by at least one Texas court to date).

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  • 17
  • April
  • 2018

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Why Employers Should be Concerned About Equal Pay

Consider this common scenario: You have interviewed multiple candidates for a management position in your company. Everyone agrees that the only female candidate who applied for the position is clearly the best candidate. You meet with her again and ask her what kind of salary it would take to persuade her to come to work for your company. She voluntarily discloses that she is currently making $80,000 and would like to earn $90,000. You would have been willing to offer her a salary of $110,000 because that is what you recently agreed to pay a similarly qualified male candidate, but you offer her $100,000 instead, thinking that you are already exceeding her expectations. She happily accepts.

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“Stark and Abrupt Change” Required for Constructive Notice in FMLA Cases

Many employers ignore the multitiered notice requirements of the Family Medical Leave Act (“FMLA”) (an issue that I will discuss in a future post). Nonetheless, most employers recognize that they need to be careful when terminating any employee for excessive absences or tardies if that employee ever suggested that he may be suffering, or have suffered from, a serious medical condition. It doesn’t matter if the company has tracked the employee’s absences as FMLA absences; an employer still risks being sued for FMLA interference or retaliation if the employee had provided some notice of a serious medical condition in the past. 

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Proper Management Might Keep Your OSHA Recordables From Losing You a Contract

Contractors know that their OSHA Incidence Rate — which is based on the number of OSHA recordable injuries and illnesses — can make a difference in whether their company is hired for a particular job. Large companies that hire many contractors will often consider the bidder’s incidence rate in awarding a contract.

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  • 29
  • March
  • 2018

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The Perils of Dragging Out a Termination Decision

In the 2009 movie Up in the Air¸ George Clooney played a human resources consultant who specialized in “termination assistance.” While conducting employee layoffs and firings for other companies, Clooney travels the country, accumulating the highest frequent flier status on American Airlines. Clooney’s character has a job because his clients are scared to handle firings themselves. Although most companies handle their own terminations, unlike Hollywood’s portrayal of “high-flying” termination consultants, the employers’ “fear factor” highlighted in the film manifests in real life by sometimes causing companies to delay giving bad news to employees.

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The SEC Is Upping the Ante and "Whistles" Are Getting Expensive

Following the financial crisis and the discovery of Bernie Madoff’s Ponzi scheme, Congress passed the Dodd Frank Act, which expanded substantially the SEC’s whistleblower program and established the SEC’s Office of the Whistleblower. Under this new regulatory scheme, whistleblowers were eligible to receive an award of between 10 and 30 percent of the monetary sanctions collected, including any sanctions that might be levied in parallel investigations brought by other regulators including DOJ. Since 2010, the SEC has awarded whistleblowers a number of large awards, including several awards in the multi-million dollar range, the largest of which until now was for $30 million in 2014.

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  • 23
  • March
  • 2018

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Inevitable Disclosure in Texas: Are Companies Protected from Employee Movement that Threatens Their Trade Secrets?

Imagine an employee who has access to valuable information regarding how your business is run. That employee then accepts a position with a competitor in which he would perform similar job duties and in which the sensitive or proprietary information he knows about would be helpful (and probably made him a strong candidate in the first place). Moreover, it is almost certain that the sensitive or proprietary information will be revealed by virtue of that position. Even without a non-compete or confidentiality agreement, the former employer may have a claim that his former employee is violating trade-secret laws in the new job. This concept — that the employee will necessarily divulge his former employer’s confidential information in a subsequent job — is called “inevitable disclosure.”

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Hot Topic Getting Hotter — UK "Worker" Status Cases

We have previously written about the UK’s “worker” status, an intermediate classification between an employee and a self-employed contractor, which affords some of the benefits and protections of employment (such as minimum wage and paid vacation). This remains a hot topic for employment law in 2018, with two significant cases working their way through the UK courts.

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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

S. Grace Ho

S. Grace Ho Counsel

Robert Sheppard

Robert Sheppard Associate