Archives: Employment Decisions

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The Background Check Conundrum: “Manufacturing” a Problem (Pun Intended)

I am a longtime advocate of pre-employment criminal background checks.  So I have watched with resigned acceptance as the EEOC, over 100 states and cities across the United States, and other public advocates have fought to limit the use of an applicant’s criminal history in all but limited circumstances.  New York City’s recently enacted “ban … Continue Reading

Heralding Wholesale Changes for Manufacturers, Labor Board Revamps “Joint Employer” Test

Just in time for Labor Day, the National Labor Relations Board handed organized labor a great gift and potentially disrupted the business and labor relationships of thousands of American manufacturers. On August 27, 2015, a divided Labor Board ruled 3-2 that Browning-Ferris Industries was the “joint employer” of workers supplied by a third-party.  Browning-Ferris Industries, … Continue Reading

Raising Manufacturing Employees’ Wages? Consider the Unintended Consequences

The political discourse focusing on the wage disparity between the rich and the poor has led to efforts to raise the minimum wage for American workers.  Today, more than half the states have minimum wages above the Federal minimum wage, and effective July 1, 2015, the District of Columbia crossed the $10 per hour threshold … Continue Reading

Even More Reason for Manufacturers to Update Their Employment Agreements

In an increasingly competitive landscape, a manufacturer’s significant employees may hold the “keys to the kingdom.” Loss of such a worker to a competitor could have a substantial impact on future business growth. Many manufacturers invest significant resources to keep key employees and, by doing so, preserve their market advantage.  Strategic use of employment agreements, … Continue Reading

“Light Duty” Work Assignments in Doubt: Supreme Court Adopts New Pregnancy Discrimination Standard Affecting Manufacturers

The United States Supreme Court issued its much anticipated decision in Young v. United Parcel Service, (U.S. Sup. Ct., March 24, 2015), in which the Court set forth a new standard for litigating pregnancy discrimination claims and arguably injected considerable uncertainty into “restricted duty” or “light duty” work programs. Factual Background Peggy Young worked for … Continue Reading

Five 2015 Corporate Compliance / Litigation Issues Manufacturers Need To Keep An Eye On

It is our annual tradition at the beginning of each year to report on significant issues that face manufacturers/distributors in the year ahead.  Two weeks ago, Matt reported on significant issues in the labor/employment arena.  Last week, Pam reported on Environmental, Health and Safefy (EH&S) issues.  To round out the series, I’ll be writing about … Continue Reading

Five 2015 Labor and Employment Predictions for Manufacturers

The second half of 2014 was a whirlwind of activity on the labor and employment front, and I expect that trend to continue in 2015 with manufacturers having to navigate the rapids created by these developments. The United States Supreme Court will be called on to address the Constitutionality of state medical and recreational marijuana … Continue Reading

The Gift-Giving Season? Three “Game-Changing” Employment Developments Impacting Manufacturers

The approaching holidays may have put Congress, the National Labor Relations Board and the United States Supreme Court in the “gift-giving” mood.  In the last week, three significant developments occurred which may radically affect manufacturers in 2015. On December 11, in Purple Communications, a divided National Labor Relations Board ruled that employees had a statutory … Continue Reading

Employee Separation Agreements: Is Your Company’s Agreement A Target For The EEOC?

When manufacturers determine that it is necessary to let go of an employee there is often an assessment of risk and a decision about whether a severance package should be offered in exchange for a separation agreement that contains a general release and waiver of claims against the company.  Given the recent trend in litigation … Continue Reading

The Liability Risks of Temporary Employees

Last week, Pam addressed the issue of temporary workers from an EHS perspective.  Now, in this installment of one of our “360” posts, I’ll comment on the liability risks of having temporary employees. First, an introductory note.  I understand from my conversations with manufacturing executives that many companies need to use staffing agencies in order to locate skilled workers.  In most cases, companies … Continue Reading

In Case You Missed It, You Need To Protect Your Temps, Too

We occasionally write what we refer to among ourselves as a “360” post, as in 360 degrees, or looking at an issue from all sides. I’ll write about EHS, Nicole about labor or employment issues, and Jeff will focus on other potential liability, all associated with a single factual scenario.  The way the law and … Continue Reading

Family Medical Leave Act Webinar: From Vegas Trips to Fake Doctors’ Slips

As virtually every HR professional will tell you, the Family and Medical Leave Act (FMLA) is one of the most confusing and complicated employment laws to administer. While providing job-protected leave for employees with serious health conditions or other qualifying events, it also presents the opportunity for misuse—or blatant abuse—by employees who want to mask … Continue Reading

What is compensable “work” time for purposes of calculating employee pay?

Actual productive labor is what a manufacturer may think is “work”.  No work, no pay.  However, courts have interpreted federal and state wage and hour laws much more broadly.    In general, a “workday” means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day … Continue Reading

Racial Harassment In The Workplace: What Is The Appropriate Response?

By now, almost everyone has heard about the atrocious racist rant by Donald Sterling, the owner (soon to be former owner) of the Los Angeles Clippers.  Sterling’s public reaction to these comments going viral is just as reprehensible. On the other hand, the NBA Commissioner’s response was a timely and appropriate corporate response: The views … Continue Reading

Temporary Workers: Properly Sharing Control Is Key To The Relationship

  Manufacturers are increasingly using temporary employees (“temps”) to supplement the work force.  The Bureau of Labor Statistics reports that the temporary workforce has increased exponentially.  Manufacturers  previously used temps as a stopgap for labor, but are now routinely using temps to supplement the workforce.  Our 360 post this week touches on the issues associated … Continue Reading

NLRB Proposes Rules To Provide More Employee Information To Unions And To Speed Up The Election Process

On February 4th, the National Labor Relations Board (NLRB) announced revisions to certain labor representation rules that would significantly impact both nonunionized and unionized manufacturers.  Although these rules are proposed and not considered final, manufacturing companies should pay close attention as the agency rulemaking process moves forward this year. The revisions that the NLRB is … Continue Reading

Continued EEOC Scrutiny Over Inflexible Leave Policies

Based on recent 2014 reports, the EEOC is continuing its trend of pursuing lawsuits against large employers who have allegedly violated the Americans with Disabilities Act (ADA) by failing to provide employees with reasonable accommodations in the form of leave.  The common thread in most of the cases is the employer’s unwillingness to be flexible.  For example, the EEOC … Continue Reading

Looking forward to 2014 for Manufacturers – Part II

My labor and employment watchlist for 2014 includes compliance with wage and hour issues and projected FLSA rulemaking, practices and policies involving LGBT individuals, and new OFCCP regulations involving the employment of veterans and individuals with disabilities. PAYROLL PRACTICES AND WAGE AND HOUR EXPOSURE Wage and hour issues are still on the watch list for … Continue Reading

Year-End Legal Reminders For Manufacturers/Distributors

As we approach the end of 2013, here is a list of legal reminders that we often think about with respect to our manufacturing/distributing clients: Pam (OSHA/Environmental): Resiliency – This will be one of the new watch words in 2014.  It means being prepared for the unexpected, like unusual weather events.  Is your business prepared?  … Continue Reading

Legal Issues To Consider When Purchasing Assets From Another Manufacturer

The decision to purchase the assets of a manufacturer raises a host of legal issues, including labor/employment, environmental, and product liability.  We thought we would do a group post to describe the first things that come to mind for each of us when one of our clients considers such a deal. Nicole:  As a labor … Continue Reading

New Rules from US Labor Department on Employing Veterans and People with Disabilities Will Impact Manufacturers

On August 27th, the U.S. Department of Labor announced two final rules to improve hiring and employment of veterans and for people with disabilities. One rule updates requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA); the other updates those under Section 503 of the Rehabilitation Act of 1973.  These laws require … Continue Reading

OSHA Fines Ohio Steel Mill $1.1 million – Calls Safety Efforts “Unacceptable.”

Last week, OSHA announced that it cited Republic Steel for 24 safety violations at one of its mills.  Fifteen of the 24 violations were willful.  The background regarding OSHA’s actions are described in the article in EHSToday, which is a useful website for anyone interested in safety issues.  David Michaels, assistant secretary of labor for … Continue Reading

U.S. Supreme Court Roundup – Part II

The Manufacturing Law Blog provides timely commentary on issues of importance to manufacturers and distributors.  Contributors from the law firm of Robinson & Cole LLP are corporate compliance and litigation attorney, Jeff White; environmental, health and safety attorney, Pam Elkow;  and labor and employment attorney, Nicole Bernabo. As Part II of our U.S. Supreme Court roundup, this … Continue Reading
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