September 2018 E-Update


Click here to view entire E-Update as a PDF


Another Month, Another Release of NLRB Advice Memos – Independent Contractors, No-Recordings and Conflict of Interest Rules

The National Labor Relations Board’s Office of the General Counsel (OGC) continues to issue Advice Memoranda, as it has done throughout 2018 and as we previously discussed in many of our monthly E-Updates.  For more, click here.

Government Contractor Update: New OFCCP Directives and Minimum Wage Increase

Following last month’s flurry of activity, as we discussed in the August 2018 E-Update, the Office of Federal Contract Compliance Programs has issued additional directives of interest to government contractors.  For more, click here.

Employers (Including Federal Contractors) Must Permit Off-Duty Medical Marijuana Use Under Connecticut Law

A federal district court has ruled that a company discriminated against an applicant, in violation of  Connecticut’s Palliative Use of Marijuana Act (PUMA), when it refused to hire her because of her positive drug test for medical marijuana use. For more, click here.

Ninth Circuit Gives Deference to DOL’s Dual Jobs Regulation

The U.S. Court of Appeals for the Ninth Circuit upheld the Department of Labor’s dual jobs regulation and Guidance to find that employers may not take a tip credit against the minimum wage for tipped employees who perform non-tipped work during more than 20% of the workweek – an issue that has been the subject of much controversy. For more, click here.


Begin Using the Updated FCRA Notice Now!

As we discussed in our August 2018 E-Update, the Fair Credit Report Act (FCRA) was revised to require new language be included in the mandatory notice, “A Summary of Your Rights Under the Fair Credit Reporting Act,” and the Consumer Financial Protection Bureau (CFPB) has now issued an interim final rule containing the revised notice, which employers should begin using immediately. For more, click here.

Employees Must Comply with FMLA Notice Requirements

The U.S. Court of Appeals for the Fifth Circuit affirmed the employer’s right to condition the grant of leave under the Family and Medical Leave Act on compliance with the employer’s “usual notice and procedural requirements.” For more, click here.

Reduction in Hours Constituted FMLA Interference

An employee whose hours were reduced upon her return from leave could assert violations of the Family and Medical Leave Act by her employer, according to the U.S. Court of Appeals for the Eleventh Circuit. For more, click here.

Retroactive Back Pay Is Mandatory Legal Remedy Under ADEA

The U.S. Court of Appeals for the Fourth Circuit held that back pay is a mandatory legal remedy under the Age Discrimination in Employment Act, which is not subject to the court’s discretion. For more, click here.

Failure to Provide Copy of Consumer Report Was Concrete Harm Under FCRA, but Failure to Provide Summary of Rights Notice Was Not

Applicants who were denied jobs because of consumer reports that revealed drug-related convictions could sue because they did not receive copies of the reports, as required under the Fair Credit Reporting Act, but not because they did not receive the required “A Summary of Your Rights Under the Fair Credit Reporting Act.” For more, click here.

Seventh Circuit Sets Forth Test for Joint Employer Status Under Title VII

In a case involving a hotel and its management company, the U.S. Court of Appeals identified the proper test for determining if two entities are joint employers for purposes of Title VII liability. For more, click here.


TOP TIP: Employers Need To Be Careful About Harassment By Or Of Third Parties!

There has been much focus on manager or co-worker harassment of employees, but several recent cases provide a good reminder to employers that they need to be mindful of harassment by or of customers, clients, vendors, contractors, and other third parties. For more, click here.