Category Archives: Workplace Problems

Resolutions for a Harassment Free New Year

Dear Clients, Colleagues and Friends: The year 2017 marked a seismic shift in the way the nation views sexual harassment. Time Magazine named “the silence breakers” as its Persons of the Year.  The words “me too” went from a simple phrase, to a hashtag, to a movement.  And, a deluge of claims of sexual misconduct and harassment exposed and toppled the giants of Hollywood, the news media, government, and so many other high profile industries.   While some employers may take comfort in the fact that the stories of sexual misconduct and harassment that dominate the news involve the rich, the …

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The Legal Pitfalls Inherent in Using “Works Made for Hire” in California

Labor and employment issues are frequently triggered in the entertainment space, particularly in California.  Some of these issues are well-known by practitioners in both areas of practice, while others can be a bit more obscure.  This article addresses one important area of overlap that is often the source of confusion for practitioners and their clients alike who, unbeknownst to them, have created employment relationships with their commissioned independent contractors, simply by including standard, boilerplate copyright language in their contracts. Under U.S. Copyright Law, only the author of a work can rightfully claim the copyright in that work. Obviously, when you …

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What Does HR Have to Do with a Med Mal Case for Long Term Care Providers?

It is no secret that HR professionals and executives are the gatekeepers for so many workplace legal concerns. With long term care providers, the focus on patient care is always paramount; but mitigating risk goes hand in hand with your day-to-day staff operations. This patient care and employee/employer behavior reaches an immediate, pivotal crossroads when a medical malpractice claim is filed. Now, the facility’s HR practices are heavily scrutinized to determine if and what was known about the offending employee from the time of hire to the reported incident and steps taken by the employer to correct and more.  Brian …

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Social Media – “Exhibit A” in Litigation

A recent case from the Commonwealth Court of Pennsylvania illustrates in vivid detail the potentially disastrous litigation consequences for employees of making ill-advised postings on social media, including Facebook.  It also illustrates the utility for employers of monitoring such postings for use in litigation, within appropriate legal boundaries. In Gumpher v. Unemployment Bd. of Review, No. 1735 C.D. 2016 (Pa. Cmwlth. Ct. Aug. 30, 2017), the Plaintiff had worked as a painter for Epic Metals Corporation for just under two years.  At the commencement of his employment, the Plaintiff, who was married and had numerous children, including one with special …

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National Origin Discrimination: California to up the Ante

Remember the travel ban? The Wall? Ramped up deportations? California is moving to counter and guard against potential negative employment consequences for foreign-born workers and more.  The California Department of Fair Employment and Housing (DFEH), the agency charged with enforcing the state’s civil rights laws, is considering new regulations to implement or enhance California’s national-original discrimination statute. The current statute, Government Code §12940, identifies national origin as a prohibited basis for discrimination, but doesn’t provide details. The DFEH is empowered to promulgate regulations interpreting and implementing this statute and others. Cal. Gov’t Code §12935(a). So what enhancements are contained in …

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Workplace Now: The “Localization” of Employment Law – What you Don’t Know Can Hurt

It is no secret these days that many workforces, particularly over the last five years, are now subject to numerous state and municipal laws that seek to shape and regulate numerous areas of the workplace (many of which are often conflicting) .  Given the gridlock that has been in place for almost a decade in Congress, state legislatures and cities have accelerated their oversight of employers and have imposed their own laws. In fact, there are literally hundreds of examples of how the scope of local regulation has changed, but perhaps the most breath-taking took place this year in the …

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“Ceasing the CSR’s: Once a Threat, Now A Promise”

Late in the evening of October 12, 2017, word leaked that the Trump Administration planned to finally carry out its threat to stop the Cost-Sharing Reduction Payments (“CSRs”) under the Affordable Care Act (“ACA”). The Administration confirmed the decision to cease the CSRs and published a memorandum from the Office of the Attorney General to the Secretaries of Treasury and Health and Human Services setting out the legal and policy underpinnings of that decision. Brief Background The ACA establishes two mechanisms to help defray the costs of health insurance premiums in the Healthcare Marketplace (“Marketplace”) for lower income individuals: (1) …

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“A Strong Pull on the Threads Holding Obamacare Together:” President Trump’s October 12, 2017 Affordable Care Act Executive Order

President Trump’s Executive Order titled “Promoting Healthcare Choice and Competition Across the United States” seeks to reform certain aspects of the Affordable Care Act (“ACA” or “Obamacare”) by Executive Agency action rather than Congressional legislation. It takes specific aim at three areas: 1). Expanding small employer access to association health plans; 2). Extending the availability and duration of Short-Term Limited Duration Insurance coverage; and 3). Removing the current bar on employees using employers’ Health Reimbursement Arrangements to purchase individual health insurance. Note that any such change requires action by various federal agencies, either by rulemaking or written guidance or both. …

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Is Gender Identity a Protected Class?

The Obama era Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) would have said, “YES.”  Yesterday, the Trump Administration’s DOJ answered that question with a “NO,” reversing the federal government’s stance regarding whether gender identity is a protected class under Title VII of the Civil Rights Act of 1964 (Title VII). Attorney General Jeff Sessions communicated in a letter to all U.S. Attorneys on October 4, 2017 that Title VII does not cover bias based on transgender status.  The letter reverses a position taken by former Attorney General Eric Holder in December 2014.  Attorney General Sessions wrote, “This …

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“Workplace Now”™

“Workplace Now” is a new quarterly report concerning the rapid changes occurring in today’s workplaces.  We will identify key areas that General Counsel, HR Professionals, Corporate Risk Managers and Insurance Professionals should consider in evaluating workplace concerns. This four part series will examine future issues that we predict will become major areas of discussion in the years to come. Our first discussion will cover the expansion of local and state workforce laws and how employers, particularly those with national workforces, have quite literally been overtaken by these dynamic changes at the local level. The second report will identify the expected …

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