The Use of Third-Party Background Checks – New Forms And Old Traps

The use of third-party background check companies to conduct background checks as part of the hiring process continues to be popular with many private employers. The procurement and use of background checks, however, is fraught with new changes and old traps for the unwary. Below are five things every employer who uses third party background …read more »

Can the FLSA’s White-Collar Exemptions Apply to Employees Paid on a Daily, Hourly, or Shift Basis?

To qualify for the “white collar” exemptions under the FLSA, an employee must be paid on a “salary basis” and meet a job duties test.  To meet the salary basis test, the majority of exempt employees are paid a guaranteed weekly salary that does not vary depending on the number of hours they work.  However, …read more »

When the Government Shuts Down, So Does E-Verify

Government shutdowns seem to be occurring all too frequently.  Although President Trump recently signed a bill to end the most recent government shutdown on January 25, 2019, it is only a short-term bill, which means another shutdown could be looming in the coming weeks. Government shutdowns cause numerous issues, but one that employers should be …read more »

In a Tight Labor Market, a Reminder: Most No-Poaching Agreements are Illegal, Some Could Land You in Jail

In recent months, the U.S. unemployment rate has dropped to levels not seen since the late 1960s. This news—great for American workers—has left many employers scrambling to identify, hire, and retain qualified talent and to shore up efforts to assess and manage the business risks posed by an increasingly peripatetic workforce. As employers evaluate and …read more »

Can Companies Require the Arbitration of Disputes Brought By a Vendor’s Workers?

Both before and after the U.S. Supreme Court’s important recent decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) holding that class action waivers in arbitration agreements are not precluded by federal labor law, many employers have implemented arbitration agreements with their employees specifying that employment disputes with the company must be …read more »

Jury in the Southern District of Texas Finds that Mud Engineers are Exempt from Overtime under the FLSA

On October 25, 2018, a jury in the Houston Division of the Southern District of Texas decided that drilling fluid specialists, also known as “mud engineers,” were exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”) under the white collar, administrative exemption.  This case is one of the very few FLSA cases …read more »

Department of Labor Clarifies the Compensability of Travel Time

Determining the circumstances in which “travel time” must be paid to non-exempt employees is often a vexing issue when employees work at customer locations rather than a fixed worksite.  A recent Department of Labor Wage and Hour Division opinion letter sheds light on some of the difficult questions that arise with respect to such employees.  …read more »

OSHA Issues New Guidance on Workplace Safety Incentive Programs and Post-Incident Drug and Alcohol Testing Policies – And It’s Good News for Employers

Heads up if you administer a workplace safety incentive program or have a post-incident drug and alcohol testing policy – OSHA has just done an about face. Two-plus years ago on May 12, 2016, OSHA published a final rule that added a provision to 29 CFR §1904.35 prohibiting employers from retaliating against employees for reporting …read more »

Fifth Circuit Upholds Right to Wear “Fight for $15” Buttons at Work

The National Labor Relations Act requires employers to allow all employees—including non-unionized ones—to express opinions on the terms and conditions of their employment. The National Labor Relations Board and the Fifth Circuit recently reaffirmed this idea in a case where the employer argued that the employees’ expression would hurt the employer’s business. The case is …read more »

Do Employees Have to Return Severance Pay Before Filing Suit Under Title VII and the EPA?

Many employers have had employees sign separation agreements releasing all claims in exchange for severance pay.  But what happens when an employee signs a separation agreement and receives severance pay, but then changes her mind, alleging that she was pressured into signing the agreement and that the release is invalid, and decides to pursue her …read more »