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Can An Employer Legally (If Unintentionally) Screen Out Older Job Applicants?

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. [Read more →]

October 20, 2016   No Comments

The Defend Trade Secrets Act: What Does it Really Mean for Employers? The Good, the Bad and the Ambiguous, Part 2

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. [Read more →]

October 6, 2016   No Comments

A Business Immigration Practitioner’s Take on the New Entrepreneur Program and Recent Trends

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). [Read more →]

October 4, 2016   No Comments

Save the Date: Troutman Sanders’ Annual Workplace Challenges Update is November 10!

Troutman Sanders invites in-house counsel, HR professionals and other executives charged with labor and human resources responsibilities to join us for our 2016 Annual Workplace Challenges Update on Thursday, November 10 starting at 8:00 a.m. until 2:00 p.m. at IHG’s Crowne Plaza Hotel (590 West Peachtree Street, Atlanta, 30308).

This free half-day labor & employment seminar will offer the latest news on managing your workplace, best practices in HR strategies and practical suggestions for remaining compliant with ever-changing HR laws. Steve Paskoff of Employment Learning Innovations will kick off the seminar with a discussion on implementing effective harassment prevention training approaches.

Additional seminar topics include:

  • Data Security and Employee Data Compliance
  • Trade Secrets and Business Protection
  • Agency Authority (EEOC, NLRB, OFCCP, OSHA)
  • FLSA and Overtime Rule Adjustments
  • Retaliation and Protected Activity Expansion
  • Data Privacy Concerns

Please mark your calendars and plan to attend. More information to come!

October 3, 2016   No Comments

Federal Contractors Must Read This!

Do you do business with the federal government?  If you do, you (hopefully!) know that keeping up with the rules and regulations of being a federal contractor are no easy task.  But we are here to help!

Lawyers at our firm, including HRLawMatters contributor Jim McCabe, have written an incredibly helpful article to help federal contractor employers comply with recent changes to their obligations. This article was recently published on the DirectEmployers Association website – and you can see it at this link here.  The article, entitled “Five Steps to Compliance with the Fair Pay and Safe Workplaces Final Rule” gives clear guidance on how to make sure you are in compliance with the so-called federal contract “blacklisting” rules.  As you will see from the article, the new rules are being phased in over the next year, starting as soon as October 25, 2016, and put a number of new duties on federal contractors, including:

  • disclosing “labor law decisions” both before and after contract award, which the federal government will use in making their “responsibility” determinations: deciding whether the contractor is a responsible source to whom a contract may be awarded;
  • giving a wage statement to employees containing for each workweek the number of hours worked, the number of overtime hours, rate of pay, additions to and from gross pay, and total gross pay;
  • providing written notice to independent contractors that they are independent contractors and not employees; and
  • forbidding contractors from entering into agreements with employees or independent contractors that require arbitration of claims under Title VII of the Civil Rights Act (which includes discrimination and retaliation claims based on race, color, religion, sex and national origin) or sexual harassment claims.

All federal contractors will have to understand these new rules and put in place procedures to ensure they are in compliance with them — and soon.  Jim and his co-author, David P. Goodwin, lay out 5 concrete and clear steps that all federal contractors should follow to make sure they get in compliance.  The article also includes a very helpful graphic of their 5 steps (for those of you who like visualizing the tasks), which is included here:


If you are federal contractor (or even thinking of trying to become one), this article is a must-read!


September 28, 2016   No Comments

New Paid Sick Leave Laws Compel Employers to React — and Prepare (Part II)

As discussed in Part I (posted earlier this week), a number of states and local municipalities have enacted paid sick leave legislation mandating paid time away from work for employees. While some of these laws are already in effect, others are coming soon.  Employers with operations in the following areas should revisit their policies and make adjustments as needed to plan for these upcoming changes: [Read more →]

September 21, 2016   No Comments

New Paid Sick Leave Laws Compel Employers to React — and Prepare (Part I)

A number of states and local municipalities have recently enacted paid sick leave legislation mandating paid time away from work for employees. Unfortunately for employers, many of these laws contain provisions that conflict with already-enacted paid sick legislation and require an adjustment of current policies, leading to confusion about requirements and entitlements.


Employers with operations in the following areas should revisit their policies and make adjustments as needed to remain current or to plan for upcoming changes: [Read more →]

September 19, 2016   No Comments

Could A Franchisor Be Liable For A Franchisee’s Employment Decisions?

Franchise agreements typically make clear that a franchisee is a separate entity from the franchisor and that the franchisor has no liability as an employer of anyone the franchisee hires and employs.  Indeed, traditionally franchisors have not been routinely deemed joint or co-employers with their franchisees.  This is because the franchisor usually does not control hiring, firing, wages, breaks, and other day-to-day operations of the franchisee to the extent necessary to create an agency relationship between a franchisee’s employee and the franchisor.  A recent case decided by a federal court in California, however, might put that traditional thinking and legal relationship in doubt. [Read more →]

September 1, 2016   No Comments

Safely Preventing Workplace Violence

If you are an HR professional, you surely worry about workplace violence.  Whether it is an “active shooter” at work or just an argument that turns physical between two employees, the concern about workplace violence and the harm it can cause — both to those directly involved and everyone else who works there — is quite real and undoubtedly scary.

I recently read an article from the Business Journal publications that I found useful:  “Preventing Workplace Violence: What to Listen For, Look For, Notice and Do.”  This article discusses issues surrounding workplace violence prevention and offers some “identifying signs and symptoms” that can be a precursor to violence.  [Read more →]

August 25, 2016   No Comments

Have You Gotten An Email from the EEOC?

Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers. [Read more →]

August 16, 2016   No Comments