BCLP At Work

BCLP At Work

Employment Policies

Main Content

OSHA Indefinitely Postpones Electronic Submission of Injury and Illness Records

May 26, 2017

Categories

We’d like to share with our readers a recent Client Alert from the Bryan Cave OSHA Industry Team providing notice to clients that an upcoming July 1, 2017 deadline for submission of injury and illness logs to OSHA has been delayed by the Trump Administration.  The alert also contains some additional commentary on related injury/illness recordkeeping requirements.

https://www.bryancave.com/en/thought-leadership/osha-indefinitely-postpones-electronic-submission-of-injury-and.html

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations. If you or your organization would like more information on this alert or how the new regulations affect your business, please contact an attorney in the Labor and Employment practice group.

France’s Right to Disconnect

May 24, 2017

Categories

Early this year, France enacted a new law concerning the right of French employees to disconnect from digital devices off hours. The intent is to reduce work-induced stress and enable employees to benefit from their rest time at night, on weekends, and during vacation.

On May 9th 2017, Bryan Cave Labor & Employment lawyers Sarah Delon-Bouquet, Federica Dendena, Gary Freer, and Martin Luederitz from four jurisdictions – France, Germany, Italy and the UK – presented a highly attended webinar discussing the recent developments in France and Europe. For those clients operating globally and across various EU jurisdictions, it came as no surprise that there is no uniformity amongst the EU jurisdictions, and each requires individual interpretations that also include a consideration of the differing cultural norms and working practices.

Although there are differences, the following summary can be applied universally:

  • Try to anticipate and plan ahead;
  • Recognize the working culture and expectations of staff across Europe is critical;
  • Apply common sense rules that respect the rights and employees and ensure they are able to retain a healthy work life balance;
  • Avoid court battles with your employees over these topics;
  • Enable your staff to voice their concerns;
  • Listen to raised concerns and work to avoid costly disputes; and
  • Consult your legal advisors if confrontation appears likely.

 

If you would like a copy of Bryan Cave’s presentation, or would like to discuss France’s Right to Disconnect or any other EU jurisdiction, please contact a member of Bryan Cave’s Labor

Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 2 of 3)

Common Mistake No. 2: Paying a Separating Employee Something Extra Without Requiring a Waiver and Release

This post continues the discussion of common errors made by employers terminating employees which can be easily avoided.

Whether it is advisable to pay a separating employee something extra in exchange for a waiver and release of claims against the employer depends on a number of factors, such as the strength of the potential claims that the employee would be waiving and the likelihood of the employee filing suit. That said, an employer should never pay separating employees money to which they are not otherwise entitled without requiring the execution of a waiver and release.

While the wisdom of this advice might be obvious to some, it is not uncommon in my experience to see an employer gratuitously pay a couple of weeks pay to a separating employee without requiring the employee to execute a waiver and release. As you might guess, this mistake typically comes to my attention because the separating employee is threatening the employer with legal claims after depositing the employer’s gratuitous severance payment, given further credence to the first rule of employment law: No good deed goes unpunished.

While employers sometimes voluntarily provide severance to separating employees at the time of separation, other employers contractually obligate themselves to provide severance (without a corresponding duty on the part of the employee to provide a release) through poor drafting of employment agreements. For example, the employer promises in an employment agreement at

The Use of Unconditional Offers of Reinstatement to Reduce Damages Exposure

This post discusses the underutilized litigation strategy of extending an unconditional offer of reinstatement to a former employee-plaintiff who has filed (or has threatened to file) suit challenging his or her termination from employment.

How the Rejection of an Unconditional Offer of Reinstatement Impacts Damages

The U.S. Supreme Court has held that a former employee’s rejection of an unconditional offer of reinstatement (i.e., one that does not require the plaintiff to waive or compromise his or her discrimination claim) to a substantially equivalent position tolls the accrual of the employer’s back pay liability:

An unemployed or underemployed claimant, like all other Title VII claimants, is subject to a statutory duty to minimize damages. . . . This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding suitable employment. Although the unemployed or underemployed need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to back pay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll accrual of back pay liability by unconditionally offering the claimant the job he sought, and thereby providing him with an opportunity to minimize damages.

A plaintiff’s rejection of a Ford Motor Offer is measured by an objective standard – namely, whether a reasonable person would refuse the offer of reinstatement. See Feidler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808 (8th Cir.

Paid Sick Leave

April 25, 2017

Categories

Paid Sick Leave

April 25, 2017

Authored by: Lily Kurland

While no federal law requires employers to provide employees with paid sick leave benefits, such an obligation does exist under certain state and municipal laws, including but not limited to those in Connecticut, California, Illinois, Massachusetts, Oregon, Vermont, Washington, D.C., Seattle, and New York City.

The scope of each of these laws, however, varies greatly. For example, while Connecticut’s law generally only applies to hourly workers in certain “service” occupations, California’s law generally applies to all employees, including temporary employees, who work in the state for 30 or more days per year. The consequences for failing to comply with the relevant state or municipal law likewise vary, with certain locales providing employees with their own private right of action.

In order to determine what, if any, paid sick leave obligations it has, employers should be sure to familiarize themselves with the following information:

  • The states or municipalities that have laws requiring paid sick leave;
  • The types of industries and/or employers to which each applicable law applies;
  • What, if anything, an employee must do to qualify for paid sick leave benefits under each applicable law;
  • The type and amount of paid sick leave to which an employee is entitled under each applicable law;
  • How paid sick leave benefits are accrued under each applicable law;
  • The purposes for which paid sick leave may be used under each applicable law; and
  • Whether paid sick leave benefits must be paid out upon termination under each applicable law.

Bryan Cave LLP has a

Getting More Bang for Your Buck With Separation and Settlement Agreements

All employers, at one time or another, will provide terminated employees with a severance payment for a release of all claims that employees may have against the employer, as well as other promises.  Too often, employers blindly “copy and paste” language from old agreements that may contain outdated provisions that no longer comply with current law, or that were tailored to a factual setting different from the situation they are currently facing.  Employers should review their standard settlement agreements, with the following non-exhaustive items to bear in mind.

Timing of Execution.   An employee may not release future claims, i.e., claims that have not yet accrued.  Employers sometimes provide severance agreements to departing employees while they are still employed.  If the employee signs while employed, waiving any past claims, the waiver would not apply to any claims that accrue after the employee’s execution of the agreement.  Thus, if the employee is subjected to improper conduct after executing the agreement (but while still employed), or does not receive a bonus or some other benefit to which the employee believes he or she is entitled, the employee’s release would not be a defense to such a claim.  Accordingly, the employer should present the separation agreement to the employee on the last day of employment or after the employee has been terminated.  In the alternative, the employer may present the separation agreement to the employee while employed, but include language in the agreement that requires the employee to sign the agreement after the employee

FMLA Administrators: Have You Checked Out The DOL’s Website Lately?

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers. The FMLA homepage now includes clear links and easy access to:

  • General Guidance materials (such as FAQs and separate employee and employer guides);
  • Fact Sheets (topics range from the meaning of “in loco parentis” to joint employer responsibilities);
  • E-Tools (interactive online tools and presentations about the FMLA);
  • Posters (including the new FMLA poster issued in April 2016; use of the new poster is not yet required, but the information in the new poster has been streamlined and simplified);
  • Forms (consider making it a practice to pull FMLA notices and certification forms from the website each time they are needed, so as to ensure you are using the most recent forms);
  • Interpretive Guidance (such as DOL opinion letters on thorny topics);
  • Law and Regulations (if you’re looking to go directly to the source!).

You’ll likely find it worth your while to spend some time reviewing the above FMLA materials.

We will continue to post FMLA blogs from time to time on Bryan Cave’s L&E blog. You can also find FMLA blogs from the past several years on

Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 1 of 3)

This post (the first of three) discusses common errors made by employers when terminating employees, all of which can be easily avoided.

Mistake No. 1: Offering an Older Employee a “Retirement” Package

Well intentioned employers sometimes are tempted to characterize a performance-based, involuntary termination of an older employee as a “retirement.” However, the mere mention of the word “retirement” in connection with a termination decision, even when offering an enhanced severance package, can lead to liability under the Age Discrimination in Employment Act (the “ADEA”).

Interestingly, the original version of the ADEA excluded from coverage employees who were 70 years old or older, as well as employees who were under the age of 40. Accordingly, employers could force employees to retire at age 70 under the original version of the ADEA without facing liability. However, the ADEA was amended in 1986 to remove the exclusion for employees who were 70 years old or older. Thus, with the exception of employees in safety-sensitive positions (e.g., pilots, firefighters, and police officers), employers generally may not force an employee to retire due to age.

Despite this well-settled law, some employers mistakenly believe that they can force an older employee. Perhaps this confusion stems from the original version of the ADEA, or may it is because the prohibition against age discrimination is not intuitive. Indeed, unlike other protected traits that have no bearing on one’s ability to perform the job in question (e.g., race, sex, and national origin), there sometimes is a correlation between

The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.