Recently, Equal Employment Opportunity Commission Commissioner, Chai Feldblum, had her re-nomination on the brink, after Utah Republican Senator Mike Lee took steps to block it. Readers might have heard that late last week, Commissioner Feldblum's re-nomination quietly slipped away and she tweeted out a thank you to supporters and friends, acknowledging that her time at the EEOC was over. While there has not been much in the way of a further update in regard to that ongoing saga, we wait to see how things will play out at the EEOC, now that it has lost a quorum until additional Commissioners are confirmed by the Senate.
For the time being, there are other developments for readers to review this week. In particular, I call attention to the article on managing a wage & hour audit by the Department of Labor as well as steps an employer can take to better ensure compliance with the ADA.
As always, below are a couple articles that caught my eye this week.
Suspicionless Drug Testing Permissible in Some Cases Without Violating the 4th Amendment
Late last month, the Eleventh Circuit Court of Appeals issued a ruling in Friedenberg v. School Board of Palm Beach County, in which the Court held that suspicionless drug testing is lawful in some instances, without running afoul of the Fourth Amendment. In Friedenberg, the school board required all applicants for substitute teacher positions to pass a drug test. The teachers argued this was a violation of the Fourth Amendment as a suspicionless and unconscionable drug test. However, as a matter of first impression, the Court held that teachers have a diminished privacy interest (in a school setting), the urine drug test was minimally invasive, and that the school established it had a compelling interest in protecting its students by ensuring the teachers were not impaired. This opinion is well worth a read for those looking for an in depth analysis of how at least one court treats the lawfulness of drug testing, especially drug testing as far reaching as what occurred in this case.
D.C. Circuit Court of Appeals Affirms Browning-Ferris Joint Employer Standard
At the end of December, the D.C. Circuit Court of Appeals issued a (much anticipated) opinion in which it in essence affirmed the Browning-Ferris joint employer standard. In its opinion, the Court held that "the right-to-control element of the Board's joint-employer standard has deep roots in the common law. The common law also permits consideration of those forms of indirect control that play a relevant part in determining the essential terms and conditions of employment...[T]he joint-employer test [includes] consideration of both an employer's reserved right to control and its indirect control over employees' terms and conditions of employment." As many have noted, it will be interesting to see what the National Labor Relations Board does, in regard to its rulemaking, in light of the D.C. Circuit's opinion. Stay tuned.
A Few Tips On How To Handle Your Next Department of Labor Wage & Hour Audit
Jim Reidy at HR Daily Advisor recently wrote an article that provides employers with a few suggestions on how to handle their next Department of Labor wage & hour audit. As with many of these types of articles, each suggestion might not be applicable to every employer. Nevertheless, the range of suggestions provided here include advice that employers cooperate within a reasonable period of time, offer assistance to the inspector (without going overboard), and not blocking the inspector access to the employees, among other tips. The article ends with a recognition of the Department of Labor's PAID program and the somewhat mixed reviews it has received since being implemented earlier last year.
Taking a Closer Look at the CBS Decision to Deny Les Moonves His $120 Million Severance
Some readers have likely read about Les Moonves, the former CBS CEO, and his resignation from the company last September. That resignation resulted in a severance agreement being entered into for $120 million. After news of that severance leaked, an uproar began as the reason for his resignation seemed to center around a groundswell of #MeToo complaints made against him. Well, late last year, it was announced that CBS would not pay Moonves his $120 million dollar settlement. Eric B. Meyer took a look Moonves' employment and settlement agreements in an effort to establish how CBS could backtrack and withhold the $120 million settlement...after agreeing to pay it. This one is well worth a read, in part for Meyer's highlighting of the relevant portions of each agreement to delineate the important parts for readers.
7 Suggestions For Ensuring ADA Compliance
The Americans with Disabilities Act ("ADA") is a hot button issue for many in human resources and can often lead to hand ringing and ongoing frustration over ensuring the employer remains compliant. Lisa Burden at HR Dive wrote an article on Monday that offers employers 7 tips to better ensure ADA compliance is less of a concern. As with the article on handling a Department of Labor wage & hour audit, every suggestion here might not apply to every employer. With that being said, there are enough key pointers here for employers that I would strongly suggest reviewing this one at least once or twice.
McDonald's Workers Strike Over Workplace Safety
This past Tuesday, workers in St. Petersburg, Tampa, and Orlando went on strike to bring awareness to workplace safety matters and request their employers implement workplace violence training. This comes on the heels of a McDonald's worker being attached at the end of last year by a customer over an apparent lack of straws at the counter. (Some readers might have seen the video of the attack). For the sake of these workers, especially those in the fast food industry that work with often hostile customers at all hours of the day, I hope this strike will bring about change in their workplaces.
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