January 2017 E-Update


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Fourth Circuit Expands Joint Employer Definition Under the Fair Labor Standards Act

On January 25, 2017, the U.S. Court of Appeals for the Fourth Circuit (which covers Maryland, Virginia, West Virginia and the Carolinas) announced a new and expansive standard for determining if two legally separate entities are joint employers for purposes of Fair Labor Standards Act (“FLSA”) liability.  The standard is likely to render companies that use subcontractors for labor jointly responsible for minimum wage and overtime violations……Read More.

Fourth Circuit Applies New Joint Employer Standard to Independent Contractors

In a decision issued the same day as Salinas v. Commercial Interiors, Inc., in which the U.S. Court of Appeals articulated a new and expansive standard for establishing joint employer status under the Fair Labor Standards Act, the Fourth Circuit applied Salinas to a case involving independent contractors…..Read More.

NLRB, EEOC and DOL Issue Joint Fact Sheet on Retaliation

The National Labor Relations Board, the Equal Employment Opportunity Commission, and the Department of Labor (along with two of its sub-agencies – the Office of Federal Contract Compliance Programs and the Occupational Safety and Health Administration) issued a joint Fact Sheet, “Retaliation Based on the Exercise of Workplace Rights Is Unlawful.” The Fact Sheet, which is available in 14 languages in addition to English, explains that the agencies will protect all employees from retaliation by employers for exercising workplace rights…..Read More.

OSHA Releases Anti-Retaliation Guidance

The Occupational Safety and Health Administration announced that it was issuing a guidance document, “Recommended Practices for Anti-Retaliation Programs,” intended to assist employers with creating workplaces free from retaliation. OSHA’s recommendations, which are not mandatory, are intended to be adaptable to all employers….Read More.



D.C. – New Law Banning Credit Inquiries

The District of Columbia Council has passed a law that bans employers from inquiring into, request or using an applicant’s or employee’s credit information, or from taking employment action based on such information…..Read More.

DOL – Increased Penalties

Less than six months after the Department of Labor increased the civil money penalties that can be imposed for violations of the laws that it enforces, it has announced additional increases…..Read More.

FLSA – Emotional Distress Damages

The U.S. Court of Appeals for the Fifth Circuit concluded that the Fair Labor Standards Act allows an employee to recover damages for emotional distress due to retaliation. ….Read More.

FCRA – Disclosure Requirements

A recent case reminds employers of the importance of complying with the Fair Credit Reporting Act’s very technical disclosure requirements….Read More.

ADEA – “Subgroup” Disparate Impact Claim

The U.S. Court of Appeals for the Third Circuit found that the Age Discrimination in Employment Act permits a “subgroup” of employees to bring a claim that others in the ADEA-protected group of employees age 40 and over received better treatment. In so holding, the Third Circuit disagreed with the Second, Sixth and Eighth Circuits, who have refused to recognize such a claim….Read More.

TOP TIP: Document! Document! Document!

All too often, an employer becomes frustrated with an employee’s continuing poor performance or conduct and wants to terminate – but lacks the documentation to establish the performance and conduct issues and to demonstrate that the employee was counseled about them. There are many reasons that managers give for the lack of documentation – not wanting to create a negative disciplinary history for the employee, not having the time to do so, not being aware of the need to document, etc…..Read More