In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:Religious Accommodations: - Does an employer have to accommodate an employee who cannot work on Sundays and what constitutes an undue hardship.  The Third Circuit considered these issues in Groff v. DeJoy.Berling v. Gravity Diagnostics - In this recent Kentucky case, a jury awarded an employee over $450,000 when his employer ignored his request that it forego giving him a birthday party due to the employee’s panic disorder and later terminated his employment.COVID-19 - Everyone wants to move on but there are still lawsuits pending.  Two recent cases  involve employee refusal to undergo weekly testing and absenteeism in part due to FFCRA leave.Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:Religious Accommodations: - Does an employer have to accommodate an employee who cannot work on Sundays and what constitutes an undue hardship.  The Third Circuit considered these issues in Groff v. DeJoy.Berling v. Gravity Diagnostics - In this recent Kentucky case, a jury awarded an employee over $450,000 when his employer ignored his request that it forego giving him a birthday party due to the employee’s panic disorder and later terminated his employment.COVID-19 - Everyone wants to move on but there are still lawsuits pending.  Two recent cases  involve employee refusal to undergo weekly testing and absenteeism in part due to FFCRA leave.Listen in to find out what happened with these issues and how your business can avoid problems. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Labor & Employment Law Update - Week of 5/30/22

On March 3, 2022,  the President signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  A product of the Me Too Movement, the new law allows individuals bringing sexual assault and sexual harassment claims who entered into predispute arbitration agreements or  class- or collective-action waivers  to reject those agreements and waivers and  bring those claims in court and via a class or collective action.  The law applies to any claims arising after the date of enactment.  In addition, California law as it currently stands bans all mandatory predispute arbitration agreements in employment and Congress recently passed the Forced Arbitration Injustice Repeal Act of 2022 (FAIR Act), which would also ban mandatory predispute arbitration agreements if it becomes law.  Times are uncertain for employers who rely on arbitration.  Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

On March 3, 2022,  the President signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  A product of the Me Too Movement, the new law allows individuals bringing sexual assault and sexual harassment claims who entered into predispute arbitration agreements or  class- or collective-action waivers  to reject those agreements and waivers and  bring those claims in court and via a class or collective action.  The law applies to any claims arising after the date of enactment.   In addition, California law as it currently stands bans all mandatory predispute arbitration agreements in employment and Congress recently passed the Forced Arbitration Injustice Repeal Act of 2022 (FAIR Act), which would also ban mandatory predispute arbitration agreements if it becomes law.   Times are uncertain for employers who rely on arbitration.   Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

The Future of Arbitration

The so-called gig economy is subject to a great deal of uncertainty in the labor and employment law context.  The key issue is whether workers are properly classified as employees and subject to various labor and employment laws or whether they are independent contractors with a lot of flexibility but far less legal protection.  This is not a new issue but the prevalence  and popularity of gig economy businesses  like Uber, Lyft, DoorDash and others have brought the issue into the spotlight. The traditional test for independent contractor status is multifactored and focuses on the issue of the hiring party's control over the worker.  In 2019, California passed a law adopting the "ABC Test," a simple test that classifies almost every worker as an employee.  The legal battle over that law in California remains unresolved but the same ABC Test is in the federal PRO Act, which has passed the House but not the Senate.  If it passes, the gig economy may not survive and independent contractors may no longer be an option for many businesses.  What can employers do in  the midst of all this uncertainty?  Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

The so-called gig economy is subject to a great deal of uncertainty in the labor and employment law context.  The key issue is whether workers are properly classified as employees and subject to various labor and employment laws or whether they are independent contractors with a lot of flexibility but far less legal protection.  This is not a new issue but the prevalence  and popularity of gig economy businesses  like Uber, Lyft, DoorDash and others have brought the issue into the spotlight.  The traditional test for independent contractor status is multifactored and focuses on the issue of the hiring party's control over the worker.  In 2019, California passed a law adopting the "ABC Test," a simple test that classifies almost every worker as an employee.  The legal battle over that law in California remains unresolved but the same ABC Test is in the federal PRO Act, which has passed the House but not the Senate.  If it passes, the gig economy may not survive and independent contractors may no longer be an option for many businesses.  What can employers do in  the midst of all this uncertainty?   Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

The Gig Economy

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including: Religious Accommodation: New cases addressing employer obligations in the area of religious accommodations under Title VII are discussed as well as the EEOC’s new guidance on COVID-19 vaccination accommodations, which was issued on March 1, 2022.   You can find the EEOC’s complete guidance here:    https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws The new vaccine accommodation guidance begins at Letter “L” – scroll down. Social Media: The media recently reported on the termination of a longtime executive from the cosmetics company Estee Lauder after an unfortunate social media post that included a racial slur.  What can employers take from this situation and how can they avoid similar issues?   Recall Laws: The California Labor Commission recently fined a California resort over $3M for failing to recall employees who had been laid off due to COVID-19 in violation of California’s Right to Recall Law.  That law requires employers in certain industries to offer re-employment to employees who lost their jobs due to COVID-19 or face stiff penalties.  And it’s not just California – these laws exist in other jurisdictions as  well.Listen to the new episode of The Practical Employment Law Podcast for insights on these stories and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including: Religious Accommodation: New cases addressing employer obligations in the area of religious accommodations under Title VII are discussed as well as the EEOC’s new guidance on COVID-19 vaccination accommodations, which was issued on March 1, 2022.   You can find the EEOC’s complete guidance here:    <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws" rel="nofollow" target="_blank">https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws</a> The new vaccine accommodation guidance begins at Letter “L” – scroll down. Social Media: The media recently reported on the termination of a longtime executive from the cosmetics company Estee Lauder after an unfortunate social media post that included a racial slur.  What can employers take from this situation and how can they avoid similar issues?   Recall Laws: The California Labor Commission recently fined a California resort over $3M for failing to recall employees who had been laid off due to COVID-19 in violation of California’s Right to Recall Law.  That law requires employers in certain industries to offer re-employment to employees who lost their jobs due to COVID-19 or face stiff penalties.  And it’s not just California – these laws exist in other jurisdictions as  well.Listen to the new episode of The Practical Employment Law Podcast for insights on these stories and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Labor & Employment Law Update - Week of 3/7/22

Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me?  Well, take heart because there are a surprising number of  movies that rely heavily on  labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast.I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&amp;E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&amp;E law.In this Bonus Episode:     9 to 5 (1980)          Content: 4 out of 5 stars;          Accuracy: 3 out of 5 stars.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me?  Well, take heart because there are a surprising number of  movies that rely heavily on  labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast. I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&amp;E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&amp;E law. In this Bonus Episode:      9 to 5 (1980)           Content: 4 out of 5 stars;           Accuracy: 3 out of 5 stars. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Bonus Episode #2 - Labor and Employment Law Goes To The Movies: 9 to 5

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including: The NFL Discrimination Lawsuit: The NFL and three teams are being sued for discrimination in hiring and the allegations include an alleged sham interview that accidentally came to light due to an errant text message.   The Resignation of CNN President Jeff Zucker: In another major story, the president of CNN has resigned due to the disclosure of a consensual workplace relationship with another employee.   What can employers learn from these stories? Listen to the new episode of The Practical Employment Law Podcast for insights on these stories and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including: The NFL Discrimination Lawsuit: The NFL and three teams are being sued for discrimination in hiring and the allegations include an alleged sham interview that accidentally came to light due to an errant text message.   The Resignation of CNN President Jeff Zucker: In another major story, the president of CNN has resigned due to the disclosure of a consensual workplace relationship with another employee.   What can employers learn from these stories? Listen to the new episode of The Practical Employment Law Podcast for insights on these stories and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Labor & Employment Law Update - Week of 2/7/22

In honor of the famous holiday song, The Twelve Days of Christmas, this episode will cover twelve thoughts on the vaccine mandates, including:1.         Current status of the mandates; 2.         The Supreme Court’s consideration of the OSHA rule;3.         Timing issues created by the OSHA rule;4.         Steps for employers before the deadlines; 5.         The costs associated with compliance;6.         Handling accommodation requests;7.         Issues with turnover;8.         Issues with noncompliant employees;9.         State and local laws;10.       Impact of mandates on smaller businesses;11.       Union issues;12.       Communication with employees.Listen to the new episode of The Practical Employment Law Podcast to find out more about these issues. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In honor of the famous holiday song, The Twelve Days of Christmas, this episode will cover twelve thoughts on the vaccine mandates, including:1.         Current status of the mandates;  2.         The Supreme Court’s consideration of the OSHA rule; 3.         Timing issues created by the OSHA rule; 4.         Steps for employers before the deadlines;  5.         The costs associated with compliance; 6.         Handling accommodation requests; 7.         Issues with turnover; 8.         Issues with noncompliant employees; 9.         State and local laws; 10.       Impact of mandates on smaller businesses; 11.       Union issues; 12.       Communication with employees.Listen to the new episode of The Practical Employment Law Podcast to find out more about these issues. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Twelve Thoughts About Vaccine Mandates

Ebenezer Scrooge

The holidays are here again and they represent a minefield for employers.  It seems that every year the period of time from mid-November through the end of the year is guaranteed to generate employment litigation.  With that in mind, let’s look to Charles Dickens’ beloved character Ebenezer Scrooge to give us some holiday employment law advice on 5 topics:1.            Scheduling, Absenteeism and Tardiness2.            Holiday Parties3.            Holiday Displays4.            The Holidays Bonus5.            Termination and Adverse ActionListen to the new episode of The Practical Employment Law Podcast to find out what advice Scrooge has for you on these issues.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

The holidays are here again and they represent a minefield for employers.  It seems that every year the period of time from mid-November through the end of the year is guaranteed to generate employment litigation.  With that in mind, let’s look to Charles Dickens’ beloved character Ebenezer Scrooge to give us some holiday employment law advice on 5 topics: 1.            Scheduling, Absenteeism and Tardiness 2.            Holiday Parties 3.            Holiday Displays 4.            The Holidays Bonus 5.            Termination and Adverse Action Listen to the new episode of The Practical Employment Law Podcast to find out what advice Scrooge has for you on these issues. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Employment Law Advice from Ebenezer Scrooge

While the OSHA Emergency Temporary Standard mandating vaccines for employers with over 100 employees has dominated the news, there are two other federal mandates that impact many employers: the federal contractor rule issued via executive orders and the Centers for Medicare &amp; Medicaid Services (CMS) Rule applicable to medicare and medicaid recipients.   In this episode, the current status of these rules will be discussed along with some thoughts on what employers should be doing right now to comply or prepare to comply with the rules.OSHA ETS: This rule has been stayed by the 5th Circuit and OSHA has agreed to take no further action toward enforcement or implementation until the courts rule on the ETS.  The challenges are now consolidated before the 6th Circuit, which has yet to issue a briefing schedule.  It is likely that even after the 6th Circuit rules, there will be additional litigation that will most likely be resolved by the U. S. Supreme Court.  For now, it seems unlikely that the ETS will go into effect as originally scheduled.  Federal Contractor Rule:  This rule requires covered employees be vaccinated by January 18, 2022 but defines fully vaccinated as occurring two weeks after the last dose of a two-dose vaccine or two weeks after the single dose so the actual deadline to have vaccinations completed in January 4, 2022.  The rule is subject to multiple challenges but to date, no stays have been issued so it appears to be going forward.CMS Rule:  The CMS rule requires covered workers to be fully vaccinated by January 4, 2022.  This means that first doses of two-dose vaccines must be received by December 6, 2021.  This rule has also been the subject of several legal challenges; like the federal contractor rule, the challenges are pending but no stays have been issued to stop the rule from going into effect on schedule.Employers weighing compliance options need to move quickly if they are covered by the federal contractor or CMS rules.  Employers covered by the OSHA ETS should take steps to prepare for compliance but need not act until the legal challenges are resolved or the stay is lifted.Listen in for additional information.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

While the OSHA Emergency Temporary Standard mandating vaccines for employers with over 100 employees has dominated the news, there are two other federal mandates that impact many employers: the federal contractor rule issued via executive orders and the Centers for Medicare &amp; Medicaid Services (CMS) Rule applicable to medicare and medicaid recipients.   In this episode, the current status of these rules will be discussed along with some thoughts on what employers should be doing right now to comply or prepare to comply with the rules. OSHA ETS: This rule has been stayed by the 5th Circuit and OSHA has agreed to take no further action toward enforcement or implementation until the courts rule on the ETS.  The challenges are now consolidated before the 6th Circuit, which has yet to issue a briefing schedule.  It is likely that even after the 6th Circuit rules, there will be additional litigation that will most likely be resolved by the U. S. Supreme Court.  For now, it seems unlikely that the ETS will go into effect as originally scheduled.  Federal Contractor Rule:  This rule requires covered employees be vaccinated by January 18, 2022 but defines fully vaccinated as occurring two weeks after the last dose of a two-dose vaccine or two weeks after the single dose so the actual deadline to have vaccinations completed in January 4, 2022.  The rule is subject to multiple challenges but to date, no stays have been issued so it appears to be going forward. CMS Rule:  The CMS rule requires covered workers to be fully vaccinated by January 4, 2022.  This means that first doses of two-dose vaccines must be received by December 6, 2021.  This rule has also been the subject of several legal challenges; like the federal contractor rule, the challenges are pending but no stays have been issued to stop the rule from going into effect on schedule. Employers weighing compliance options need to move quickly if they are covered by the federal contractor or CMS rules.  Employers covered by the OSHA ETS should take steps to prepare for compliance but need not act until the legal challenges are resolved or the stay is lifted. Listen in for additional information. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Federal Vaccine Mandate(s) Update

OSHA issued its Emergency Temporary Standard (ETS) effective November 5, 2021. The ETS requires employers with 100 employees or more to require employees be vaccinated or submit to weekly testing and wear masks.  The ETS requires that covered employers begin complying by December 5, 2021 (other than testing) and sets a deadline to begin testing employees who are not fully vaccinated by January 4, 2022. The rule and related materials, including FAQs and policy templates, can be found here: https://www.osha.gov/coronavirus/ets2Employers should bear in mind that despite having a short time frame for compliance, the ETS will be subject to immediate legal challenges. This combination of urgency and uncertainty means that covered employers should make planning their approach to the ETS a high priority.In this episode, the following questions will be considered:What employers are covered?What if employee numbers fluctuate above and below 100 employees?How should companies count the employees of their related entities?What employees are covered?What are covered employers required to do?What are the requirements for employee testing?Who pays for the tests?What are the masking requirements for unvaccinated employees?What must covered employers communicate to their employees?What are the reporting and record keeping requirements?Does the ETS address state laws that prohibit vaccine mandates or otherwise contradict its requirements?You can read more about the ETS here: https://www.kmklaw.com/newsroom-publications-1105Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

OSHA issued its Emergency Temporary Standard (ETS) effective November 5, 2021. The ETS requires employers with 100 employees or more to require employees be vaccinated or submit to weekly testing and wear masks.  The ETS requires that covered employers begin complying by December 5, 2021 (other than testing) and sets a deadline to begin testing employees who are not fully vaccinated by January 4, 2022. The rule and related materials, including FAQs and policy templates, can be found here: <a href="https://www.osha.gov/coronavirus/ets2" rel="nofollow" target="_blank">https://www.osha.gov/coronavirus/ets2</a>Employers should bear in mind that despite having a short time frame for compliance, the ETS will be subject to immediate legal challenges. This combination of urgency and uncertainty means that covered employers should make planning their approach to the ETS a high priority. In this episode, the following questions will be considered:<ul><li>What employers are covered?</li><li>What if employee numbers fluctuate above and below 100 employees?</li><li>How should companies count the employees of their related entities?</li><li>What employees are covered?</li><li>What are covered employers required to do?</li><li>What are the requirements for employee testing?</li><li>Who pays for the tests?</li><li>What are the masking requirements for unvaccinated employees?</li><li>What must covered employers communicate to their employees?</li><li>What are the reporting and record keeping requirements?</li><li>Does the ETS address state laws that prohibit vaccine mandates or otherwise contradict its requirements?</li></ul>You can read more about the ETS here: <a href="https://www.kmklaw.com/newsroom-publications-1105" rel="nofollow" target="_blank">https://www.kmklaw.com/newsroom-publications-1105</a> Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

OSHA Issues Emergency Temporary Standard (ETS) Requiring Mandatory COVID Vaccines or Weekly Testing

A podcast covering all aspects of labor and employment law in the United States.  Attorney Mark Chumley provides practical insights into the challenges facing businesses today.

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:OSHA COVID-19  Vaccine Rule - This week, OSHA forwarded their draft Emergency Temporary Standard to the White House Regulatory Office, meaning that the promised rule mandating vaccines for employers with more than 100 employees may be coming soon.  The immediate response to the rule when it is issued may depend on whether your business is in a state that follows federal OSHA guidelines or in a state with its own OSHA approved plan.  Here is the state by state breakdown:Federal OSHA states: Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.State OSHA plans: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.State OSHA plans (state and local government workers only): Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands.The NFL and Emails - Jon Gruden resigned as head coach of the Raiders after several inappropriate emails he sent were leaked to the media.  What can businesses learn from this situation?Cannabis - New York legalized cannabis use earlier this year including a prohibition against employment discrimination for using it off duty.  The New York Department of Labor has not issued guidance clarifying what actions employers may take.  You can find the guidance here: https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdfListen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including: OSHA COVID-19  Vaccine Rule - This week, OSHA forwarded their draft Emergency Temporary Standard to the White House Regulatory Office, meaning that the promised rule mandating vaccines for employers with more than 100 employees may be coming soon.  The immediate response to the rule when it is issued may depend on whether your business is in a state that follows federal OSHA guidelines or in a state with its own OSHA approved plan.  Here is the state by state breakdown: Federal OSHA states:  Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin. State OSHA plans: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. State OSHA plans (state and local government workers only): Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands. The NFL and Emails - Jon Gruden resigned as head coach of the Raiders after several inappropriate emails he sent were leaked to the media.  What can businesses learn from this situation? Cannabis - New York legalized cannabis use earlier this year including a prohibition against employment discrimination for using it off duty.  The New York Department of Labor has not issued guidance clarifying what actions employers may take.  You can find the guidance here:  <a href="https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf" rel="nofollow" target="_blank">https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf</a> Listen in to find out what happened with these issues and how your business can avoid problems. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Labor & Employment Law Update - Week of 10/11//21

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:New OSHA Vaccine Mandate Rule – On September 9, the President announced that he is directing OSHA to issue an emergency rule requiring employers with more than 100 employees to require employees to be vaccinated or tested for COVID weekly.  At this point, no rule has been issued and there are more questions than answers but several observations are worth considering.Arbitration in California – In U.S. Chamber of Commerce v. Bonta, the Ninth Circuit overturned a lower court’s decision that a state law (A.B. 15), which prohibits employers from requiring employees to waive certain rights as a condition of employment, was in conflict with the Federal Arbitration Act.  This is significant because it means that employers in California cannot require employees to consent to arbitration as a condition of employment. Work From Home Arrangements – The EEOC has filed a federal lawsuit in Georgia over an employer’s denial of an accommodation request by an employee to work from home two days per week.  Work from home arrangements tend to be favored by the EEOC as accommodations and employers need to approach the issue with great care. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:New OSHA Vaccine Mandate Rule – On September 9, the President announced that he is directing OSHA to issue an emergency rule requiring employers with more than 100 employees to require employees to be vaccinated or tested for COVID weekly.  At this point, no rule has been issued and there are more questions than answers but several observations are worth considering. Arbitration in California – In U.S. Chamber of Commerce v. Bonta, the Ninth Circuit overturned a lower court’s decision that a state law (A.B. 15), which prohibits employers from requiring employees to waive certain rights as a condition of employment, was in conflict with the Federal Arbitration Act.  This is significant because it means that employers in California cannot require employees to consent to arbitration as a condition of employment. Work From Home Arrangements – The EEOC has filed a federal lawsuit in Georgia over an employer’s denial of an accommodation request by an employee to work from home two days per week.  Work from home arrangements tend to be favored by the EEOC as accommodations and employers need to approach the issue with great care. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Labor & Employment Law Update - Week of 9/13/21

LEAD

Avoiding illegal conduct is always a good strategy for avoiding employment litigation.  However, there are many legal things that employers and managers do that can also lead to litigation.  Here are five things that often lead to employment litigation:1.            Workplace Romances – while consensual relationships in the workplace are not illegal, they often lead to litigation when they end.2.            Nepotism – giving preferential treatment to friends and family in the workplace is legal but it often leads to unfairness and drives aggrieved employees to court.3.            Not Enforcing Policies – with a few exceptions (such as EEO policies), employers are not legally obligated to enact policies or follow their policies.  Nevertheless, employers should avoid enacting policies they will not or cannot enforce.4.            Conflict Avoidance – no one likes conflict but failing to address issues, even issues that don’t seem to violate workplace rules, often leads to litigation.5.            Being a Jerk – technically, it is not illegal to be a jerk but even an equal opportunity jerk with no discriminatory animus will land you in court. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Avoiding illegal conduct is always a good strategy for avoiding employment litigation.  However, there are many legal things that employers and managers do that can also lead to litigation.  Here are five things that often lead to employment litigation:1.            Workplace Romances – while consensual relationships in the workplace are not illegal, they often lead to litigation when they end.2.            Nepotism – giving preferential treatment to friends and family in the workplace is legal but it often leads to unfairness and drives aggrieved employees to court.3.            Not Enforcing Policies – with a few exceptions (such as EEO policies), employers are not legally obligated to enact policies or follow their policies.  Nevertheless, employers should avoid enacting policies they will not or cannot enforce.4.            Conflict Avoidance – no one likes conflict but failing to address issues, even issues that don’t seem to violate workplace rules, often leads to litigation.5.            Being a Jerk – technically, it is not illegal to be a jerk but even an equal opportunity jerk with no discriminatory animus will land you in court. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Five Legal Things That Lead to Employment Litigation

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:Transgender Employee Issues – Two new cases from Illinois involve claims of discrimination by transgender employees.  In Hobby Lobby v. Sommerville, an employee was denied access to the women’s restroom and in Todd v. JB for Governor, a campaign worked claims that she was included in a reduction in force because of transphobic bias.Religious Discrimination – In Rivas v. Caesar Enterprise Services, a casino employee was terminated for refusing to work on her religion’s Sabbath day despite requesting an accommodation.  In Starkey v. Roman Catholic Archdiocese of Indianapolis, a guidance counselor at a Catholic high school brought a discrimination claim when her contract was not renewed because she was in a same sex marriage.Dress Code and Politics – The NLRB recently filed a complaint against Home Depot for discriminating against an employee who wore a Black Lives Matter slogan on his work apron.  Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:Transgender Employee Issues – Two new cases from Illinois involve claims of discrimination by transgender employees.  In Hobby Lobby v. Sommerville, an employee was denied access to the women’s restroom and in Todd v. JB for Governor, a campaign worked claims that she was included in a reduction in force because of transphobic bias.Religious Discrimination – In Rivas v. Caesar Enterprise Services, a casino employee was terminated for refusing to work on her religion’s Sabbath day despite requesting an accommodation.  In Starkey v. Roman Catholic Archdiocese of Indianapolis, a guidance counselor at a Catholic high school brought a discrimination claim when her contract was not renewed because she was in a same sex marriage.Dress Code and Politics – The NLRB recently filed a complaint against Home Depot for discriminating against an employee who wore a Black Lives Matter slogan on his work apron.  Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a>Music :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Labor & Employment Law Update - Week of 8/16/21

In this   episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:COVID-19 and Masks: - The CDC has issued new guidance for vaccinated individuals - what does this mean for employers?  The CDC COVID-19 Tracker is here: https://covid.cdc.gov/covid-data-tracker/#county-viewMandatory Vaccination Policies - The U.S. Department of Justice has issued an opinion on the meaning of the Emergency Use Authorization status of COVID-19 vaccines, which has formed the basis for some challenges to employers’ mandatory vaccination policies.Race Discrimination - In Miller v. Brightkey, Inc., an employee raised a concern about another employees online activity and when he did not receive an immediate response, followed up with a company wide email about the issues.In Threat v. City of Cleveland, a supervisor attempted to “promote diversity” by moving employees between shifts based on race.Disability discrimination - In Collins v. American Federation of State, County &amp; Municipal Employees Council 962, an employee’s disability discrimination claims based on a mental health issue were bolstered by a supervisor’s comments about another employees health issues.Listen in to find out what happened with these issues and how your business can avoid problems.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this   episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:COVID-19 and Masks: - The CDC has issued new guidance for vaccinated individuals - what does this mean for employers?  The CDC COVID-19 Tracker is here: <a href="https://covid.cdc.gov/covid-data-tracker/#county-view" rel="nofollow" target="_blank">https://covid.cdc.gov/covid-data-tracker/#county-view</a>Mandatory Vaccination Policies - The U.S. Department of Justice has issued an opinion on the meaning of the Emergency Use Authorization status of COVID-19 vaccines, which has formed the basis for some challenges to employers’ mandatory vaccination policies.Race Discrimination - In Miller v. Brightkey, Inc., an employee raised a concern about another employees online activity and when he did not receive an immediate response, followed up with a company wide email about the issues.In Threat v. City of Cleveland, a supervisor attempted to “promote diversity” by moving employees between shifts based on race.Disability discrimination - In Collins v. American Federation of State, County &amp; Municipal Employees Council 962, an employee’s disability discrimination claims based on a mental health issue were bolstered by a supervisor’s comments about another employees health issues.Listen in to find out what happened with these issues and how your business can avoid problems. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a>Music :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Labor & Employment Law Update - Week of 7/26/21

Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me?  Well, take heart because there are a surprising number of  movies that rely heavily on  labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast. I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&amp;E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&amp;E law.In this Bonus Episode:      Robocop (1987)          Content: 4 out of 5 stars;          Accuracy: 4 out of 5 stars.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me?  Well, take heart because there are a surprising number of  movies that rely heavily on  labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast. I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&amp;E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&amp;E law. In this Bonus Episode:      Robocop (1987)           Content: 4 out of 5 stars;           Accuracy: 4 out of 5 stars. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Bonus Episode #1 - Labor and Employment Law Goes To The Movies: Robocop

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including:Marijuana – Virginia has joined a growing number of states legalizing marijuana despite the fact that it remains illegal under federal law.  The new Virginia law includes protections for employees who have a prescription for cannabis oil but not for other use.   Such employees cannot be subjected to adverse action for a positive drug test.  Many other states, including Ohio, expressly allow employers to take adverse action even where the employees use is legal.  Employers need to review applicable laws and carefully consider their approach to this issue.Errant email – Yet another recent case in the media underscores the dangers of the “reply all” button and the ill-advised practice of commenting on others’ appearances in the workplace.Minors and Arbitration – In a recent Kentucky case, the court held that the employer could not enforce its arbitration agreement because the employee was a minor when she signed at the beginning of her employment. Age Discrimination - An employer suffered an adverse decision in an age discrimination case after it told an employee that his termination as part of a reduction in force was because the company wanted to “rejuvenate” the team and cut costs.  Employers need to be very careful with the language they use to convey employment decision, particularly if there are potential age discrimination claims.Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In this new podcast episode, recent cases and news from the world of Labor &amp; Employment Law will be discussed, including: Marijuana – Virginia has joined a growing number of states legalizing marijuana despite the fact that it remains illegal under federal law.  The new Virginia law includes protections for employees who have a prescription for cannabis oil but not for other use.   Such employees cannot be subjected to adverse action for a positive drug test.  Many other states, including Ohio, expressly allow employers to take adverse action even where the employees use is legal.  Employers need to review applicable laws and carefully consider their approach to this issue. Errant email – Yet another recent case in the media underscores the dangers of the “reply all” button and the ill-advised practice of commenting on others’ appearances in the workplace. Minors and Arbitration – In a recent Kentucky case, the court held that the employer could not enforce its arbitration agreement because the employee was a minor when she signed at the beginning of her employment. Age Discrimination - An employer suffered an adverse decision in an age discrimination case after it told an employee that his termination as part of a reduction in force was because the company wanted to “rejuvenate” the team and cut costs.  Employers need to be very careful with the language they use to convey employment decision, particularly if there are potential age discrimination claims. Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Labor & Employment Law Update - Week of 7/12/21

The third and final episode in the podcast mini-series - Termination Done Right - covers additional steps for employers to consider taking to minimize the damage in the event there is litigation over a termination decision.  Steps include:1.  Arbitration: In arbitration, parties agree to allow a neutral arbitrator to serve as both judge and jury and decide their dispute instead of going to court.  Courts generally enforce arbitration agreements between employers and employees but there are pros and cons for employers to consider, including:Pros:No Jury – Taking the case away from a jury and allowing a trained arbitrator to decide the case is viewed as a positive by many employers;Faster and Cheaper – In most cases, arbitration proceedings are resolved quicker than cases in court.  It is possible for arbitration proceedings to be cheaper than traditional litigation but it is not guaranteedLower Settlement Values – One issue that drives settlement value is the threat of a runaway jury verdict but when juries are removed from the equation, the settlement value of a case tends to be lower;More Privacy – While arbitration proceedings are not confidential, they are not as public as a court proceeding.Cons:Arbitration Fight – Employers may find themselves in costly court fights over the enforceability of arbitration agreements;More Weak Claims – Unlike litigation in court, there are less opportunities to dispose of arbitration proceedings prior to a hearing, meaning that weaker claims are more likely to make it to a hearing in arbitration;Costs – While arbitration has been traditionally viewed as a cheaper alternative to litigation, costs have been rising steadily over the years and some question whether the economics continue to favor arbitration;No Appeals – Unlike a court case, arbitration decisions are rarely appealable, meaning that parties may be stuck with an obviously flawed decision. Major Arbitration Providers include: American Arbitration Association (https://www.adr.org/)JAMS (https://www.jamsadr.com/)NAM (https://www.namadr.com/)CPR (https://www.cpradr.org/)FORUM (https://www.adrforum.com/)2.  Jury Waivers: Jury trial waivers require employees to waive their right to have a jury decide their employment claims; a judge decides the case instead.3.  Class Action Waivers: Class action waivers limit employees to bringing only claims on their own behalf rather than joining a class action.4.  EPLI Coverage: Employment practices liability insurance, known as EPL insurance or EPLI, provides coverage to employers against claims made by employees alleging certain employment related claims. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

The third and final episode in the podcast mini-series - Termination Done Right - covers additional steps for employers to consider taking to minimize the damage in the event there is litigation over a termination decision.  Steps include:1.  Arbitration: In arbitration, parties agree to allow a neutral arbitrator to serve as both judge and jury and decide their dispute instead of going to court.  Courts generally enforce arbitration agreements between employers and employees but there are pros and cons for employers to consider, including: Pros:<ul><li>No Jury – Taking the case away from a jury and allowing a trained arbitrator to decide the case is viewed as a positive by many employers;</li><li>Faster and Cheaper – In most cases, arbitration proceedings are resolved quicker than cases in court.  It is possible for arbitration proceedings to be cheaper than traditional litigation but it is not guaranteed</li><li>Lower Settlement Values – One issue that drives settlement value is the threat of a runaway jury verdict but when juries are removed from the equation, the settlement value of a case tends to be lower;</li><li>More Privacy – While arbitration proceedings are not confidential, they are not as public as a court proceeding.</li></ul>Cons:<ul><li>Arbitration Fight – Employers may find themselves in costly court fights over the enforceability of arbitration agreements;</li><li>More Weak Claims – Unlike litigation in court, there are less opportunities to dispose of arbitration proceedings prior to a hearing, meaning that weaker claims are more likely to make it to a hearing in arbitration;</li><li>Costs – While arbitration has been traditionally viewed as a cheaper alternative to litigation, costs have been rising steadily over the years and some question whether the economics continue to favor arbitration;</li><li>No Appeals – Unlike a court case, arbitration decisions are rarely appealable, meaning that parties may be stuck with an obviously flawed decision.</li></ul> Major Arbitration Providers include:<ul><li> American Arbitration Association (<a href="https://www.adr.org/" rel="nofollow" target="_blank">https://www.adr.org/</a>)</li><li>JAMS (<a href="https://www.jamsadr.com/" rel="nofollow" target="_blank">https://www.jamsadr.com/</a>)</li><li>NAM (<a href="https://www.namadr.com/" rel="nofollow" target="_blank">https://www.namadr.com/</a>)</li><li>CPR (<a href="https://www.cpradr.org/" rel="nofollow" target="_blank">https://www.cpradr.org/</a>)</li><li>FORUM (<a href="https://www.adrforum.com/" rel="nofollow" target="_blank">https://www.adrforum.com/</a>)</li></ul>2.  Jury Waivers: Jury trial waivers require employees to waive their right to have a jury decide their employment claims; a judge decides the case instead.3.  Class Action Waivers: Class action waivers limit employees to bringing only claims on their own behalf rather than joining a class action.4.  EPLI Coverage: Employment practices liability insurance, known as EPL insurance or EPLI, provides coverage to employers against claims made by employees alleging certain employment related claims. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a>Music :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Termination Done Right - Part 3 

Many employers are using or considering using smartphone apps for their employees.  In such cases, employees download an app that can be used for a variety of purposes, including employee engagement, communication, work assignments, route and delivery information and more.  While apps can be helpful, they also raise many employment law issues, including the following:1.  Reimbursement: Two states – California and Illinois - have statutes specifically requiring reimbursement for required employee cell phone use.  Several other states have statutes that arguably require cell phone reimbursement, including: Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, Pennsylvania, and District of Columbia.  2.  Wage and Hour Issues: The FLSA requires that employees be paid for all hours that the employer “suffers or permits” to be worked.  When employees have an app on their phone, it opens the door to a lot of unauthorized work time related to using the app, checking messages, etc.  App usage can also raise issues with break and meal time laws and minimum wage violations.3.  Discrimination:  If employers require the use of an app, employees must have a smartphone.  If employers do not provide the phone, it becomes a condition of employment and employers may face claims that the requirement constitutes discrimination based on legally protected characteristics related to smartphone ownership.4.  Privacy: Placing an app on a personal phone that tracks and gathers data (e.g. location) creates possible privacy issues.  Most of these issues can be addressed by obtaining authorizations from employees regarding their reasonable expectations of privacy and limiting data collection during non-work hours. 5. Safety:  Having employees who drive use an app presents an inherent risk that needs to be addressed.  Any accident that occurs due to distracted driving related to the employer’s app presents a risk of substantial liability.  Similarly, distractions caused by app use in other potentially hazardous environments should be considered as well.Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

Many employers are using or considering using smartphone apps for their employees.  In such cases, employees download an app that can be used for a variety of purposes, including employee engagement, communication, work assignments, route and delivery information and more.  While apps can be helpful, they also raise many employment law issues, including the following:1.  Reimbursement: Two states – California and Illinois - have statutes specifically requiring reimbursement for required employee cell phone use.  Several other states have statutes that arguably require cell phone reimbursement, including: Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, Pennsylvania, and District of Columbia.  2.  Wage and Hour Issues: The FLSA requires that employees be paid for all hours that the employer “suffers or permits” to be worked.  When employees have an app on their phone, it opens the door to a lot of unauthorized work time related to using the app, checking messages, etc.  App usage can also raise issues with break and meal time laws and minimum wage violations.3.  Discrimination:  If employers require the use of an app, employees must have a smartphone.  If employers do not provide the phone, it becomes a condition of employment and employers may face claims that the requirement constitutes discrimination based on legally protected characteristics related to smartphone ownership.4.  Privacy: Placing an app on a personal phone that tracks and gathers data (e.g. location) creates possible privacy issues.  Most of these issues can be addressed by obtaining authorizations from employees regarding their reasonable expectations of privacy and limiting data collection during non-work hours. 5. Safety:  Having employees who drive use an app presents an inherent risk that needs to be addressed.  Any accident that occurs due to distracted driving related to the employer’s app presents a risk of substantial liability.  Similarly, distractions caused by app use in other potentially hazardous environments should be considered as well.Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

There's An [Employment] App For That

In a surprise move on Friday (5/14), the CDC issued new guidance indicating that individuals who have been fully vaccinated no longer need to wear masks or social distance in most settings.  Several states and municipalities, including Ohio, have quickly adopted the CDC’s new approach and m ore are likely to follow.  This has left employers with a lot of questions, including:     Can I continue to require masks?     If I no longer require masks for vaccinated employees, can I ask who has been vaccinated?     Can I or should I verify the vaccination status of employees?     What issues might come up when I change the mask policy?     Do I need to involve the union in these issues?Listen to the new episode of The Practical Employment Law Podcast for insights on these questions and more.Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.comMusic :Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber

In a surprise move on Friday (5/14), the CDC issued new guidance indicating that individuals who have been fully vaccinated no longer need to wear masks or social distance in most settings.  Several states and municipalities, including Ohio, have quickly adopted the CDC’s new approach and m ore are likely to follow.  This has left employers with a lot of questions, including:     Can I continue to require masks?     If I no longer require masks for vaccinated employees, can I ask who has been vaccinated?     Can I or should I verify the vaccination status of employees?     What issues might come up when I change the mask policy?     Do I need to involve the union in these issues?Listen to the new episode of The Practical Employment Law Podcast for insights on these questions and more. Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit <a href="http://www.kmklaw.com" rel="nofollow" target="_blank">www.kmklaw.com</a> Music : Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial  (3.0) license. <a href="http://dig.ccmixter.org/files/texasradiofish/61983" rel="nofollow" target="_blank">http://dig.ccmixter.org/files/texasradiofish/61983</a> Ft: Scomber

Update: CDC Issues New Guidance on Masks

The Practical Employment Law Podcast

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