• Posts by Debra A. Mastrian
    Partner

    Debbie grew up watching her father practice law and saw how he helped people resolve their problems. He inspired her to become a lawyer and he still inspires her today more than 25 years into her own career.

    Debbie advises and defends ...

Under the Fair Labor Standards Act (FLSA), employees must be properly classified as either exempt or nonexempt, and nonexempt employees must be paid overtime (1½ times their regular rate of pay for all hours worked over 40 hours in a workweek). All compensation, including commissions and non-discretionary bonuses, must be included in the regular rate of pay for purposes of calculating overtime, unless the compensation is one of eight specified types of payment (e.g., holiday gift, birthday gift, discretionary bonus, and certain profit sharing payments).

Employees may be ...

The flu virus circulates all year round, although according to the Centers for Disease Control and Prevention (CDC), flu activity historically peaks in February. Here are a couple of flu-related questions frequently asked by employers:

Is an employee entitled to FMLA for absences due to the flu?

Maybe. The Family Medical Leave Act (FMLA) provides covered employees up to 12 weeks of unpaid leave during a 12 month period if the employee has a “serious health condition that makes the employee unable to perform” his or her job.  A serious health condition is an illness that involves ...

Website accessibility continues to be a hot topic. Hundreds of businesses throughout the country have been sued in the past few years for failing to have accessible websites.  Retail businesses have been the primary target; however, financial institutions and now, the healthcare industry, are receiving threatening letters from high profile law firms, alleging that the businesses’ websites are not “accessible” and in violation of the Americans with Disabilities Act (ADA). The law firms threaten to file suit if the businesses do not make their websites compliant with the ...

A recent 7th Circuit Court of Appeals decision, Gracia v. Sigmatron, International, Inc., Case No. 15-3311, is a good reminder to employers to be careful in taking adverse action against an employee who recently engaged in statutorily protected activity. In Gracia, a longtime employee, who had complained of sexual harassment by her supervisor and filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), was fired two weeks later for allegedly allowing a subordinate to make a production error on a customer order.  The employee sued her ...

A recent Second Circuit case, Graziadio v. Culinary Institute of America, Case No. 15-888-cv (Mar. 17, 2016), offers a sobering lesson for human resources personnel and supervisors who handle the administration of leave requests under the Family and Medical Leave Act (FMLA). The Court held that an HR Director may be liable as an employer, as a “person who acts, directly or indirectly, in the interest of an employer” toward an employee. Finding that the FMLA definition of employer is similar to the definition under the Fair Labor Standards Act (FLSA), the Court agreed with other ...

Employers, including federal contractors, who are required to file annual Employer Information Reports (also known as EEO-1 reports) with the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), may soon have additional reporting requirements. Currently, employers with more than 100 employees and certain federal contractors with 50-99 employees, have to report the number of full-time and part-time employees by sex, race, ethnicity and job category on their EEO-1 reports.

The EEOC ...

A Fair Labor Standards Act (FLSA) collective action lawsuit, filed over five years ago by Chicago police officers who claimed they were not paid overtime for their off-duty use of work-issued BlackBerrys, went to a bench trial in August, and the federal judge recently ruled in the City’s favor.  Although the court, in Allen, et al. v. City of Chicago, Case No. 10-C-3183 (N.D. Ill. Dec. 10, 2015), found that the police officers were performing compensable overtime work on their devices while off-duty, the police officers failed to prove that there was an unwritten policy to deny them ...

A recent 7th Circuit case, Hooper v. Proctor Health Care, Inc., Case No. 14-2344 (7th Cir. 2015), serves as a reminder that a plaintiff cannot state a failure to accommodate claim under the Americans with Disabilities Act (“ADA”) if the plaintiff’s physical or mental limitations do not affect the plaintiff’s ability to perform essential job functions.

In Hooper, an employee diagnosed with bi-polar disorder prior to being hired by Proctor, requested time off after an incident that took place outside of work. He disclosed his diagnosis to the Director of Human ...

The EEOC and NLRB continue to actively review severance agreements, in addition to social media policies and employee handbooks. The provisions that draw the most scrutiny are waivers or releases of claims, confidentiality and non-disparagement provisions.

Any attempt to interfere with an employee’s right to file an administrative charge, communicate with the agencies, or participate in agency investigations, are troublesome. Remember that while an employee can waive or release an EEOC or NLRA claim, the employee can still file a charge of discrimination or an unfair labor ...

Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. 

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