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

  • 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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  • 21
  • November
  • 2019

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It’s Time For Federal Contractors To Review Their Disability Affirmative Action Programs

Earlier this year, the Office of Federal Contract Compliance Programs (“OFCCP”) announced that it will be placing an increased emphasis on disability inclusion in the workplace. In order to accomplish that goal, the agency said it will be conducting “focused reviews” of compliance with Section 503 of the Rehabilitation Act, which requires federal contractors to take affirmative action to recruit, hire, promote, and retain individuals with disabilities.

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One Tweet, and the World Is at Your Door

Recent events show that all it takes is one tweet from even a midlevel manager of a company to create an international incident. We have previously written about having policies that restrict employees from speaking on behalf of the company when they are not authorized to do so. However, that does nothing to stop employees from generally saying what they wish on behalf of themselves on matters seemingly unrelated to their employer.

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  • 12
  • November
  • 2019

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Bearing Arms Part I: Texas Tips on Implementing a Lawful Firearms Policy

For three years, Texas law has allowed folks with a concealed license the right to carry their firearms openly. Texas continues to expand the rights of gun owners. In September, a spate of new gun reform legislation in Texas became effective, including looser restrictions on firearms during states of emergency and natural disasters, as well as new prohibitions against landlords from restricting gun ownership within their rented properties. Given this new legislation, we are starting a mini-series dedicated to helping employers navigate the changing landscape of gun rights and regulations in the Lone Star State. In this first installment, we’ll begin by describing the basics of firearm policies.

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  • 07
  • November
  • 2019

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Requirements for Lactation in the Workplace Continue to Evolve

States (and cities) across the country are increasing protections for employees that are lactating. Effective January 1, 2020, a new California law amends and broadens pre-existing requirements for employers’ accommodations of lactating employees, as well as the penalties for non-compliance. The new law also requires employers to create and distribute a lactation accommodation policy. 

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  • 05
  • November
  • 2019

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Call on Me: Properly Compensating the On-Call Employee

While firefighters and plumbers have long been used to it, more and more office employees are being required to be remain “on-call” outside normal work hours in order to accommodate the business needs of their employer. It may be an IT employee who is asked to remain on call to offer help to any executive who is unable to log-in at his or her home over the weekend, an administrative professional who is asked to standby in case a lawyer needs help with an emergency motion, or an in-house travel assistant who is asked to remain available to resolve an employee’s unanticipated flight cancelations.

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  • 29
  • October
  • 2019

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One Agency in Washington is Definitely on the Job

If your company is a federal contractor, do not assume that the current administration is uninterested in enforcing discrimination laws. In fact, the Office of Federal Contract Compliance Programs (OFCCP) has collected record amounts from government contractor employers during the Trump administration. That is why, though changes to a complaint form would not usually catch our attention, this one does.

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  • 24
  • October
  • 2019

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California Criminalizes Arbitration Agreements

On October 10, 2019, California Governor Gavin Newsom signed a law that prohibits employers from requiring any applicant or employee “waive any right, forum or procedure for a violation of any provision of the California Fair Employment and Housing Act.” Violation of the new law is a misdemeanor. The law applies to any arbitration agreements that are entered into after January 1, 2020. The law does not apply to post-dispute settlement agreements, to negotiated severance agreements or to employees registered with self-regulatory organizations under the Securities Exchange Act.

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  • 22
  • October
  • 2019

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When Onboarding New Employees, Keep An Eye on Privilege Issues

There are a lot of good folks out there who might help your company but who have noncompete agreements or other restrictions in agreements with their current or recent employers. To decide whether to hire such employees, you may decide that you should review their agreement, have discussions with them about the restrictions, and maybe even reach out to their prior employer. In that process, it is best to have legal counsel, either inhouse or external, helping with the review of the situation. It is a temptation to include the candidate in communications with the company’s attorney. However, be careful when instigating such communications because what is said – whether written or verbal – by the company’s attorney to that candidate may not be privileged. If no attorney client, work product, or common interest privilege applies, those communications may be subject to discovery should litigation ensue.

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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