Be Careful If You Want to Use Unpaid Interns this Summer

325219.jpgSummer is upon us. The time of year that many of us are pressured to take on an employee’s son, daughter, niece or nephew “just for the experience” of working in the real world. What could go wrong? The kid gets some experience and you get some free labor. A win-win, right? You might want to slow down.

Many businesses run afoul of federal law by failing to pay minimum wage and overtime pay to unpaid interns whom the law considers to actually be employees. Federal courts have historically used the “primary beneficiary test” to determine whether an unpaid Summer worker was an employee under the Fair Labor Standards Act (FLSA). Under this test, courts examine the economic realities of the worker-employer relationship to determine which party is the primary beneficiary of the relationship. If the unpaid worker is not the primary beneficiary, they should probably be classified as an employee. Continue reading “Be Careful If You Want to Use Unpaid Interns this Summer”

Apparently I Need to Say This: Do Not Say “Whites Preferred” When Posting a Job Online

Yes, I know. You are probably thinking that I have lost my mind. Who would be dense, foolish, racist (insert your favorite substitute for “dumb _ _ _” here) enough to do such a thing? Apparently, a now-former employee of Cynet Systems was.

If you have not already heard, last weekend the net learned that Cynet posted a job online seeking candidates “Preferably Caucasian.” Continue reading “Apparently I Need to Say This: Do Not Say “Whites Preferred” When Posting a Job Online”

U.S. Supreme Court Ruling on Arbitration Agreements Is a Win for Employers

Almost a year ago the U.S. Supreme Court affirmed the enforceability of class action waivers in arbitration agreements between employers and employees (see Epic Systems Corp. v. Lewis https://www.scotusblog.com/case-files/cases/epic-systems-corp-v-lewis). Last week the Court issued an opinion that further solidified the enforceability of class action waivers in the employment context. Continue reading “U.S. Supreme Court Ruling on Arbitration Agreements Is a Win for Employers”

Am I Disabled If My Boss Really Annoys Me?

Image result for clipart png  ball bouncingAs with most questions arising under the ADA, the answer is a firm “it depends on the facts.” Under the facts of a Sixth Circuit case decided on March 20th, the answer was “no.”

In this case the Plaintiff, Ms. Tinsley, worked as a Business Analyst for Caterpillar Financial.  She thought that the stress of her job was causing her to suffer health issues.  She initially requested, in writing, that she be removed from specific projects, stating that her “many [work] responsibilities … [were] causing [her] to be stressed beyond what [she was] physically able to handle,” which “negatively impact[ed her] work, sleep, and overall health.”  Her supervisor met with her and said that he would look into her request.  A week later Tinsley submitted a doctor’s note requesting four days off for a “confidential medical condition.”  (Sounds like time to give her FMLA form WH-300-EHealth Care Provider Certificate to me.)  Caterpillar granted her leave and upon her return to work the company met with her and reassigned some of her work to other employees.

Continue reading “Am I Disabled If My Boss Really Annoys Me?”

Claims Against Public Entities Under ADA Website Accessibility Standards Are Exploding

For several years, businesses have been beset with litigation by disabled individuals who claim the businesses’ websites are inaccessible. Many of these serial plaintiffs are now turning their attention to public entities and their websites. These plaintiffs have begun targeting cities, towns, and counties/parishes, arguing that their websites are inaccessible, most often for the visually or hearing impaired. Although the ADA only allows such a plaintiff injunctive relief, as opposed to damages, it also allows him to recover his attorneys’ fees. (New York and California, two of the states with the greatest number of ADA accessibility lawsuits, also allow plaintiff’s to recover monetary damages.) Continue reading “Claims Against Public Entities Under ADA Website Accessibility Standards Are Exploding”

The Fair Credit Reporting Act: We’re Not Done Yet

Hopefully, you will recall my prior update regarding an employer’s obligation under the Fair Credit Reporting Act to provide an applicant with a copy of the consumer report and a summary of their rights before taking adverse action. (Refer to “The Fair Credit Reporting Act is Tricky” of 12/5/2018). Well, a recent case shows that the FCRA is not only tricky, but it can also be incredibly expensive. Continue reading “The Fair Credit Reporting Act: We’re Not Done Yet”

It’s Time to Create Your E-Verify Cases

Now that the government is back in business, at least for the time being, employers have until February 11, 2019, to create cases in E-Verify for employees hired during the government shutdown.

Image result for clipart e verifyWhen entering these cases into E-Verify, employers should use the hire date from the employee’s Form I-9. If the case creation date is more than three days after the date the employee began working for pay, select “Other” in the drop-down menu. Enter “E-Verify Not Available” as the specific reason. Continue reading “It’s Time to Create Your E-Verify Cases”