This year has already provided the legal world with a number of labor and employment developments, and there has been no shortage of headlines since our last issue. July saw updates to Equal Employment Opportunity Commission guidelines surrounding the treatment of pregnant women as well as Executive Orders from the Obama Administration. The orders sought to strengthen workplace protection around sexual identity and hold government contractors more accountable for their policies. See what our experts have to say below.
Unpaid internships an unseen liability
“There is a rapidly growing trend among interns to bring collective and individual actions against employers to recover compensation for all hours worked under the Fair Labor Standards Act (FLSA). Some courts have found the interns to be ‘employees’ eligible to recover unpaid minimum wage and overtime compensation. Others have determined that former interns were sufficiently similarly situated so that notice to potential plaintiffs advising them of their right to participate in the litigation is appropriate. Some employers have responded to the increased litigation by reducing the number of interns or by eliminating their internship programs entirely; others have decided to provide the requisite compensation but to limit the overtime hours worked by interns. Employers offering unpaid internships should review their internship programs in light of recent precedents to avoid unforeseen liability.”
—Arlene Switzer Steinfield, senior counsel (Dallas), Dykema Gossett PLLC
Texting while driving policies a potential blind spot for employers
“Employee use of smartphones and other electronic devices while driving may create liability for employers. In most states, it is unlawful for a driver to operate a vehicle while using a device to write, send or read text messages, e-mails, instant messages and Internet data. It may also be unlawful to talk on the phone while operating a vehicle. Employers whose employees use devices illegally while driving may potentially face third-party liability or workers’ compensation claims. Employers should consider policies prohibiting this illegal conduct and strongly discouraging any use while driving.”
—Allegra J. Lawrence-Hardy, partner (Atlanta), Sutherland Asbill & Brennan LLP
Fair pay and safe workplace executive order may increase litigation
“An executive order, signed on July 31, 2014, requires contractors bidding on federal contracts exceeding $500,000 to disclose labor violations for the last three years, and prohibits those bidding on contracts over $1 million from mandating arbitration for certain sexual assault, harassment and discrimination claims. Business groups say sufficient laws exist to address labor violations, and the order will lead to uncertainty and an increase in lawsuits. It is expected that the order will be implemented in stages in 2016.”
—Africa E. Davidson, associate (San Francisco), Lafayette & Kumagai LLP
Absence and the Family and Medical Leave Act
“The 11th Circuit recently reversed a trial court finding that an employer interfered with an employee’s right to take medical leave for his depression. The court found that, although the employee had a chronic illness and he had provided notice of potential leave needs, the employee’s leave was not protected by the Family and Medical Leave Act (FMLA). The employee only had potential—not actual—rights for leave under the FMLA. The period of leave taken was not for a period of incapacity due to a chronic serious health condition. Instead, the leave was merely beneficial to the employee’s condition. The FMLA does not extend its potent protection to any leave that is medically beneficial leave simply because the employee has a chronic health condition.” Hurley v. Kent of Naples, Inc., et al., 11th Circuit, decided March 20, 2014.
—Amy Burton Loggins, attorney (Atlanta) Taylor English Duma LLP
Obama extends LGBT discrimination protections through Executive Order
“On July 21st, President Obama signed an executive order (EO) prohibiting workplace discrimination against LGBT (lesbian, gay, bisexual and transgender) employees by federal contractors. With the Employment Non-Discrimination Act stalled in the House of Representatives, no federal law protects private employees against employment discrimination based on sexual orientation or gender identity. The EO does not allow exemptions for religious entities beyond existing exemptions allowing religious organizations to consider an individual’s religious beliefs when making certain employment decisions. As might be expected, the EO already has generated opposition from some religious groups. Expect to see more when the proposed implementing regulations are issued in 90 days.”
—K. Joy Chin, shareholder (Melville, NY), Jackson Lewis P.C