Q.  I work for a company that employees more than 100 employees.  I heard somewhere that we now have to include pay data and hours worked on our EEO-1 forms.  Is that true?

A. Yes!  Beginning with calendar year 2017, employers with 100 or more employees will be required to…

Q: Now that the election is finally here, am I required to give employees time off to vote?

The answer to that question depends on which state you are in. There is no federal law that requires employers to give time off to vote, but many states do have such laws.  While the laws vary by state, in general, these kinds of laws provide that employers must provide time off to vote if employees do not have sufficient time to vote outside of working hours.  State laws vary as to whether the time is paid or unpaid, how much time must be given, and how much time is “sufficient” to vote outside of working hours.  Many states provide that employees are only entitled to voting leave if they provide advance notice to the employer.

As we near the end of this election season, employers should be ready for requests from employees for time off to vote. Polling places are expected to be crowded and employers in many states must accommodate their employees’ right to vote if an employee’s work schedule prevents that person from going to the polls.  (Even in states where it is not legally mandated, considering this election year, and the general feelings around fundamental right to vote, all employers should strongly consider a plan to enable employees to vote if at all possible.)

The press has been filled with stories about the new Fair Labor Standards Act (FLSA) regulations which raise the minimum salary level required for employees to be exempt from overtime pay.  Specifically, the new regulations — currently set to take effect on December 1, 2016 — raise the minimum salary level required for exempt employees under the executive, administrative and professional exemptions from $455 per week to $913 per week, or from roughly $23,660 annually to $47,456 annually. Often overlooked, however, is the fact that the new regulations also significantly affect the “highly compensated employee” (“HCE”) exemption, as well.

As we all learned in school, the First Amendment to the U.S. Constitution prohibits Congress from making laws that “abridge the freedom of speech.”  Employer-created rules and decisions are not acts of Congress, of course, and are not subject to the First Amendment.  So, employers can terminate their at-will employees (all employees without an employment contract) for a good or even a bad reason, including having a bad attitude, right?  Wrong, according to the National Labor Relations Board, at least when that bad attitude expresses itself in voicing concerns about their job.

In another example of the National Labor Relations Board (“the Board”) reaching into a non-union employer’s workplace, it ordered dance production companies that run two Las Vegas shows (Vegas! The Show and The BeatleShow) to reinstate several dancers whose employment was terminated for performance and attitude problems that spanned several years of time.  David Saxe Prods., LLC, 364 NLRB No. 100 (Aug. 26, 2016).  In a letter to one of these employees, the owner of the production companies stated:

Q.  Are there any issues I should be concerned about with regard to the Zika virus and upcoming flu season?

A.  Media attention about the Zika virus seems to have lessened now that temperatures in the Northeast have cooled.  If your business requires employee travel to Zika-infected areas, however, there…

The Eleventh Circuit Court of Appeals (which handles federal court appeals from Georgia, Florida and Alabama) recently issued a surprising and first of its kind decision holding that applicants may not bring a disparate impact claim under the Age Discrimination in Employment Act (“ADEA”).  The ADEA prohibits employers from intentionally discriminating against employees 40 or older due to their age.  Any such “disparate treatment” (another way of saying intentional discrimination) violates the ADEA.  But the ADEA is also usually understood to also prohibit unintentional discrimination on the basis of employees’ age (over 40), such as a rule or policy or practice that while non-discriminatory on its face has the real, if unintended, effect of discriminating against older workers.  This concept is known as “disparate impact” discrimination.  As the ADEA (and most employment discrimination laws) applies to both employees and applicants for employment, most assume that the disparate impact theory of discrimination also applies to applicants as it does to employees.  The Eleventh Circuit, however, said it does not.

Q.  My office likes to celebrate Halloween. With all the talk about “creepy clowns,” should I be worried that our celebration will get out of hand?

A.     Creepy clowns are making national headlines as clown sightings spread throughout the country and on social media. Whether the clown prank turns more sinister remains to be seen. In the meantime, however, ‘tis the season of goblins and ghouls, and now is a good time to remind employees of some do’s and don’ts to maintain professional decorum while celebrating the Halloween holiday:

In Part 1 of this post, we began the discussion of what the Defend Trade Secrets Act, passed in May 2016, really means for employers in defending their trade secrets.  In particular, Part 1 addressed some of the “good” the DTSA offers for employers, particularly:  (1) a clear path to federal court, (2) consistency in application, and (3) ex parte seizure orders.  In this Part 2, we address the rest of the good — five more positive benefits of the DTSA for employers.

Department of Homeland Security (DHS) has recently announced its new entrepreneur program in which it is hoping to attract entrepreneurs from around the world to enter the U.S. and start U.S. businesses. Historically, that required either:

(1) Taking advantage of an existing E-1 or E-2 treaty between the investor’s country of citizenship (or perhaps multiple citizenships) and the U.S. leaving out the great majority of countries in the world and therefore citizens of those countries; or

(2) Investing at least one million dollars in the EB-5 program (though it could be reduced to $500,000 in high unemployment or rural areas).