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Real Life Employment Law Quirky Questions Answered By Dorsey Whitney

Bonisiwe Shabane
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real life employment law quirky questions answered by dorsey whitney

The U.S. Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) have announced several changes to their whistleblower programs and rules, reflecting the federal government’s continued focus on encouraging individuals to report corporate misconduct. Specifically, on May 12, 2025, DOJ expanded its whistleblower program to prioritize additional “high impact” subject areas. On September 9, 2024, during the Biden... One of the most frequently used tools by plaintiffs’ employment attorneys in New York is a claim for unpaid wages under Article Six of the Labor Law. By alleging a violation of Article Six, a plaintiff can pursue not only the recovery of any unpaid wages but also liquidated damages for one hundred percent of the unpaid wages, along with...

Nisha Verma, a partner in Dorsey ’s labor and employment practice, was interviewed about the implications of the recently passed federal tax and spending law, often called the “megabill.” Nisha explained, “This will change... Since coming into office a little over four months ago, the Trump Administration has placed businesses on notice that it views certain actions intended to promote diversity, equity and inclusion (“DEI”) in the workplace... Employment lawyers have been busy helping their... As many of us review our busted brackets ahead of this weekend’s Final Four match ups, universities across the country are preparing for the imminent changes to the rules governing name, image, likeness[1] (“NIL)... The National Collegiate Athletic Association (“NCAA”) historically has prohibited its member... Dorsey’s L&E lawyers work closely with clients to avoid and defend against litigation, develop effective workplace policies and procedures, protect intellectual property, support corporate decisions affecting the workplace, and counsel on traditional labor law...

You must be logged in to post a comment. Get the most useful news and opportunities in tech twice a week, all for free. We recently interviewed an applicant with a very spotty resume; there were repeated gaps in his employment history which were apparent from his resume. He was not hired and called HR to complain that it is illegal for us to consider his unemployment status. Is there a new law on this subject? While federal legislative attempts to prohibit employers from refusing to hire job applicants because they are currently unemployed have failed, several cities and states have passed such laws.

They are each unique and more states and cities are expected to address this issue this year. The EEOC recently conducted investigative hearings on whether being unemployed could be a protected class under Title VII, stating that statistics bear out the unemployed population is disproportionately filled by African Americans, Hispanics, older... Because each of these categories is a protected class, the EEOC argues that by factoring in an applicant’s unemployment status, or by having a blanket policy of not considering the unemployed for openings, a... To date, the EEOC has not issued guidelines or regulations, though it has publicized its concern that companies that engage in a practice of refusing to hire applicants who are currently unemployed would be... We expect to see many states and federal agencies addressing this issue this year. Madison, Wisconsin added “unemployment” as a protected status to its discrimination laws, prohibiting discrimination in employment based on an individual’s current unemployment.

New York City recently amended its Human Rights law to prohibit discrimination against individuals based on their unemployment status unless one of four narrow exceptions applies, and imposes liability on employers that adopt a... New York City’s law also allows job applicants to bring a private action alleging unemployment discrimination. Neither law provides meaningful practical guidance. New Jersey, Oregon, and Chicago have all passed laws prohibiting employers from posting job advertisements that include a job requirement of current employment or state that only currently employed applicants would be considered. The District of Columbia also prohibits such advertisements and also prohibits employers from considering “unemployment” status when making hiring decisions. Other states including California, Connecticut, Missouri, and Maryland have also considered but not yet passed legislation prohibiting unemployment discrimination.

Given the trend, you would be wise to eliminate any direct questions on your application or in the interview about current unemployment status. Dorsey’s Labor and Employment lawyers work closely with clients in five essential areas: a) risk management–litigation avoidance and defense; b) development of effective workplace policies and procedures; c) protection of companies’ intellectual property; d)... Risk Management encompasses both avoiding and defending litigation. First, Dorsey lawyers partner with clients to (1) reduce the likelihood of litigation and (2) position our clients effectively if litigation is unavoidable. These activities include: Second, notwithstanding our clients’ best efforts, at times litigation is unavoidable.

Our Labor and Employment Partners, with many years of trial experience, defend employers in virtually every type of judicial, administrative and arbitral forum, including federal and state court, administrative hearings, arbitrations, NLRB proceedings, etc. These activities include the following: Regardless of the type of litigation, our approach is guided by five overarching principles: a) early assessment of the merits and corresponding risks of the claim; b) exploration of early resolution where warranted; c)... A crucial part of employment risk management involves working with our clients in the development and implementation of well-integrated, concise and understandable policies and procedures. These policies and procedures span an employee’s association with the employer, from the initial interview through termination and post-termination obligations. Our company has offices in California.

This year we want to improve our document retention practices. We’ve decided to maintain electronic records of personnel files. Can we do this in California? We were told that California law requires the records to be available at the job site. If this is true, can we switch to an electronic database in California? The California Labor Code, § 1198.5, specifically addresses the subject of your question.

Under the Labor Code, a California employer is permitted to retain personnel files electronically. That right, however, is circumscribed somewhat, to ensure that employees are permitted access to their personnel files. In short, you can switch to an electronic database. But, you have to make sure the records can be downloaded, stored on a disk, and maintained at your California location. California Labor Code Section § 1198.5 requires employers to permit an employee to inspect his or her personnel records. Inspection pursuant to this section must be allowed at “reasonable intervals and reasonable times.” (L.C.

§ 1198.5(b).) Section 1198.5( c) requires the employer do one of the following: (1) Keep a copy of each employee’s personnel records at the place where the employee reports to work. (2) Make the employee’s personnel records, available at the place where the employee reports to work within a reasonable period of time following an employee’s request. I am in charge of staffing at a medium-sized company that runs several centers in the metro area offering emergency day-care services on a daily fee basis for children from 6 months to 6... Because we do not know the mix of children who will be brought to our centers on any particular day, we expect every child-care provider we hire to be able to push strollers, lift... Therefore, as part of the job description, we require that all employees be able to lift at least 30 pounds.

About 9 months ago, one of our employees was in a car accident and suffered a serious injury to her shoulder. She came back to work with a doctor’s note imposing a temporary lifting restriction of 10 pounds. She’s great with kids and well-liked by her co-workers, so we didn’t want to let her go just because she got injured. Both we and the employee also thought that she would quickly recover, so we made arrangements to keep her around. It wasn’t easy, but we arranged it with the other child-care providers in her center so that she wouldn’t have to work with the youngest children. Her interactions with the older ones were limited to comply with the lifting restriction, too.

After about 12 weeks with this arrangement, the employee brought in another doctor’s note indicating that the shoulder had not responded to physical therapy and that the lifting restriction was indefinite. The employee further confided to me that the only other option was surgery, but she was afraid to have the surgery, there was no guarantee it would work, and she didn’t think she could... Because the job duty arrangement, while not ideal, seemed to be working, we have continued to employ this employee with her lifting restriction for another 6 months. Just after New Year’s, another one of our child-care providers at the same center suffered a shoulder injury, falling off a ladder while taking down Christmas lights. He took last month off, and then stopped by the office this week with a doctor’s note that detailed an identical 10-pound lifting restriction. At this point, the doctor is not sure if the injury is permanent.

Our staff is already stretched thin. Scheduling is tight. Changing yet another employee’s job description would force us to hire other employees to work with the small children that the work-restricted employees can no longer supervise. There is simply no possible way we can afford to have two employees who are unable to work with the small children. Yet this second employee obviously knows of the arrangements we made for the first, and I’m sure he is going to ask us to do the same for him. If you have any questions about Dorsey & Whitney and our Labor & Employment Group, or if you want to submit a quirky question for this blog, please fill in and submit the contact...

Δdocument.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); We are having trouble managing exempt employees’ paid time off (PTO). Our current policy allows new employees to begin earning PTO right away, with the potential to earn up to 120 hours of PTO per calendar year. PTO that is earned but not used is paid out or carried over at the end of each calendar year. The problem we are having is that certain exempt employees know that they only need to work for fifteen minutes or so to be paid for an entire day. These employees will spend fifteen minutes or so “working” while out of the office for personal reasons.

As a result, at the end of the year, these employees tend to receive a larger payout / carry over than others even though they are out of the office just as much (if... What can we do to curb this problem? [Quirky Question No. 60 is another one of our West Coast questions, this one posed to the lawyers in our firm’s Anchorage, Alaska office. Wendy Leukema, who has addressed other Quirky Questions posed to her and her colleagues in Anchorage provides her analysis below. Note that Wendy’s analysis is not dependent on statutory or common law unique to Alaska; rather, she analyzes this inquiry from the perspective of the federal statute now causing such anguish to employers and...

Once again, as the saying goes, “no good deed goes unpunished.” Your existing PTO policy is very generous – perhaps too generous – and certain employees are taking advantage of the fact that, under... The good news for you is that under the Fair Labor Standards Act (FLSA), employers with bona fide benefits plans may reduce an employee’s PTO for partial day absences due to personal reasons, including... This is true even if the employee is able to cash-out his or her earned but unused PTO at the end of the year. Webster v. Public School Employers of Washington, Inc., 247 F.3d 910, 917 (9th Cir. 2001) (explaining that a reduction in paid leave does not affect an employee’s exempt status under federal law, even if the employee is able to convert unused leave time to cash).

Thus, an employer may reduce an exempt employee’s PTO for tardiness or absences due to personal reasons without jeopardizing the employee’s exempt status. Barner v. City of Novato, 17 F.3d 1256, 1261 (9th Cir. 1994). Where an exempt employee has exhausted his or her PTO or has not yet earned enough PTO to cover the absence, employers with bona fide benefit plans have several options. With respect to full-day absences covered by the policy (e.g., vacation, illness, or injury), employers may reduce an employee’s pay or require the employee to carry a negative leave balance.

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You Must Be Logged In To Post A Comment. Get

You must be logged in to post a comment. Get the most useful news and opportunities in tech twice a week, all for free. We recently interviewed an applicant with a very spotty resume; there were repeated gaps in his employment history which were apparent from his resume. He was not hired and called HR to complain that it is illegal for us to consider his unemployment status. Is there a new law on ...

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New York City recently amended its Human Rights law to prohibit discrimination against individuals based on their unemployment status unless one of four narrow exceptions applies, and imposes liability on employers that adopt a... New York City’s law also allows job applicants to bring a private action alleging unemployment discrimination. Neither law provides meaningful practical guidance. New Je...