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Tracey Diamond counsels clients on workplace issues, provides harassment training, conducts internal investigations, drafts policies and procedures, negotiates employment and severance agreements, advises on independent contractor, FMLA and ADA compliance issues, and partners with clients to structure their workforce in the most efficient and effective way possible.

Q.  What is the standard for determining whether a worker is an independent contractor for purposes of federal wage and hour laws and union organizing conduct?

A.  Recently, both the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) issued documents supporting independent contractor status, evidencing the more pro-employer stance of the

Q.  An employee has requested that he be allowed to bring his Labradoodle to work with him. Do we have to accommodate this request?

A.  Pets are accompanying their masters everywhere these days. It is not unusual to see pets in public areas, including restaurants, and even on airplanes. Likewise, more employees are requesting to bring man’s best friend to work.  Whether an employer has to accommodate such a request depends on whether the employee is qualified individual with a disability and the request for accommodation would enable the employee to perform the essential functions of his or her job.  If the workplace is also a place of public accommodation, then the company also should be mindful of the rules under the  Americans With Disabilities Act (ADA) for “service animals.”
Continue Reading Woof Woof: Accommodating Animals in the Workplace

Q.  What is the current standard for determining whether an individual is an employee or independent contractor for purposes of the NLRA?

A.   On Jan. 25, 2019, the Republican-led National Labor Relations Board affirmed the acting regional director’s decision that drivers of a shared airport ride service were independent contractors, not employees, and therefore not

Q.  Are there any limitations on my company’s ability to require employees to submit to drug and alcohol testing after an accident?

A.  In May 2016, OSHA published a final rule that, among other things, amended the Occupational Safety & Health Act (OSH Act) to prohibit employers from retaliating against employees for reporting a work-related illness or injury. In the preamble to that final rule, OSHA cautioned that a blanket rule that mandates drug/alcohol testing after every accident, injury or illness could be seen as retaliatory. Instead, before requiring an employee to submit to post-accident testing, OSHA said  that there must be a “reasonable possibility” that drug or alcohol use caused or contributed to the reported injury or illness.  Thus, for example, it would not make sense to test an employee who reported a repetitive strain injury from typing, since drug or alcohol use is not likely to be involved.
Continue Reading OSHA Memorandum Clarifies Employer’s Right to Conduct Post-Accident Drug and Alcohol Testing

Q.  Is there anything I should look out for in documenting my legitimate business reason for terminating an employee?

A.  The United States Appeals Court for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) recently issued an opinion that serves as a warning that inconsistent explanations of an employer’s reason for an adverse employment decision could support an inference of retaliation. In Donley v. Stryker Sales Corp., No. 17-1195 (7th Cir. Oct. 15, 2018), the plaintiff filed an internal complaint with the company’s human resources department that a manager was harassing a female coworker. The human resources director investigated the complaint and the company then terminated the manager, albeit with a hefty severance package.  Shortly after the termination, however, the plaintiff also was terminated.  The company claims that it fired the plaintiff for taking improper photographs of the CEO of a vendor, who was drunk at a work event approximately six weeks prior to plaintiff’s harassment complaint.
Continue Reading Inconsistent Factual Accounts Could Support an Inference of Retaliation

Q: My company is headquartered in Massachusetts. Does the new Massachusetts law on non-competes change how I structure non-compete agreements with employees?

A: Massachusetts recently enacted a new law outlining the requirements for valid employee non-competition agreements.  The law will go into effect for non-competition agreements entered into on October 1, 2018 and later.  Agreements signed prior to the new law will remain valid.
Continue Reading Massachusetts Employers Take Heed: New Non-Compete Law Adds Important New Requirements and Prohibitions

Q.  Are there any laws related to settlement of sex harassment claims in Maryland that I should be aware of?

A.  In response to the many high-profile scandals in the news, several jurisdictions have enacted anti-sexual harassment legislation. To date, Vermont, New York, and Washington passed anti-sexual harassment laws. Maine, North Carolina, Ohio, and New Jersey introduced similar statutes in state legislatures. The new legislation aims to reduce sexual harassment in the workplace by prohibiting waiver provisions in employment contracts, preventing non-disclosure and other provisions in sexual harassment settlement agreements, and providing new avenues for employee reporting and disclosure. Maryland is the latest state to say “#MeToo.”
Continue Reading New Maryland Law Requires Employers to Gather Information on Settlement of Sex Harassment Claims

Q: Can public employees, who are not members of a union, be forced to pay union dues?

A: No. On June 27, 2018, in a 5-4 opinion, the United States Supreme Court overturned more than 40 years of precedent, ruling that it is unconstitutional to force public employees to pay agency fees.
Continue Reading Supreme Court Rules Public Sector NonMember Union Dues Are Unconstitutional

Q: Can an employer discriminate against members of the LGBT community on the basis of the employer’s religious beliefs?

A.  On June 4, 2018, the United States Supreme Court ruled in favor of a bakery that refused to bake a wedding cake ordered by a same sex couple because of the baker’s religious beliefs. The baker argued that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and that it would also violate his right to the free exercise of religion. The opinion was eagerly anticipated, as it was expected that the Court would provide some clarity on the question of whether an LGBT individual’s right to be protected from discrimination trumps an employer’s or business owner’s exercise of its sincerely-held religious belief.  The Court failed to address the substantive First Amendment issue, however, and instead focused its decision on the Colorado Civil Rights Commission’s failure to remain a neutral decision-maker.
Continue Reading Let Them Eat Cake: U.S. Supreme Court Admonishes Colorado Civil Rights Commission to Avoid Anti-Religious Bias