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FMLA Harassment Not Actionable Without Missed Leave >
April 11, 2019
The Legal Intelligencer
By: Sidney R. Steinberg
It is undoubtedly a bad idea for a manager to harass an employee each time she takes leave under the Family and Medical Leave Act (FMLA). But if the employee takes leave each time necessary, such alleged harassment, even if it is perceived a discouraging additional leave, is not illegal.

U.S. Department of Labor Proposes New Overtime Rule...Again >
March 22, 2019
The Legal Intelligencer
By: Andrea M. Kirshenbaum
After much anticipation, on March 7, the U.S. Department of Labor (DOL) issued its notice of proposed rulemaking, proposing to update, among other things, the Fair Labor Standards Act's (FLSA) salary level for the executive, administrative, professional, outside sales and computer exempt employees from $455 to $679 per week.

‘Self-Prescribed' Medical Marijuana Leads to Employee's Termination >
February 6, 2019
The Legal Intelligencer
By: Sidney R. Steinberg
The employment law implications of medical marijuana are rapidly evolving. A recent court decision addresses an employee's self-diagnosed use of "medical" marijuana along with a number of other practical ADA and FMLA issues.

Does The Continuing Violations Doctrine Apply To Title IX? >
January 25, 2019
In Keel v. Delaware State University, the U.S. District Court for the District of Delaware issued a report and recommendation to grant a university's motion to dismiss a Title IX claim based on the statute of limitations. Although the court ultimately declined to rule on the issue, Keel raised an important question that has remained undecided in the Third Circuit - whether the continuing violations doctrine applies to Title IX claims.

Explicitly Excluding Evidence of Implicit Bias in Employment Cases >
January 22, 2019
DRI's For the Defense
By: Sidney R. Steinberg and
Implicit bias as an issue is not going away. Employment litigators disregard implicit bias evidence at their own and their clients' peril.

Delayed Discipline in Employee Misconduct Results in Denial of Summary Judgment >
January 9, 2019
By: Sidney R. Steinberg
Employers are often faced with a conundrum after learning of employee misconduct. Summarily terminating an employee may appear harsh and may, in fact, lead to an unfair result. However, the longer an employer waits to take disciplinary action, the more opportunity there is for an employee to create (or, at a minimum, highlight) potential issues of fact that may undermine ultimate discipline. Such appears to be the case in the recent decision of Worthington v. Chester Downs & Marina.

Hospital Successfully Defends Termination After Nurse Returns From Opioid Abuse Treatment >
December 12, 2018
The Legal Intelligencer
By: Sidney R. Steinberg
While current drug use is not protected under the Americans with Disabilities Act, drug addiction is. Employers often struggle with the legal obligations associated with drug use and distinguishing between current use and past addiction.

Employee Arbitration Agreements in NJ Face New Hurdles >
December 12, 2018
New Jersey state courts have been less favorable to employers than federal courts when it comes to enforcing arbitration agreements. The latest example is the Appellate Division's precedential decision in Flanzman v. Jenny Craig Inc., which invalidated an arbitration agreement for lack of mutual assent because it did not designate an arbitral forum (e.g. the American Arbitration Association or the Judicial Arbitration and Mediation Services) or otherwise provide a forum selection process.

Limited Success in Enforcing Post-Employment Restrictions Against Employees >
November 7, 2018
The Legal Intelligencer
By: Sidney R. Steinberg
While many companies require senior managers and sales employees to sign restrictive covenants, it is unusual for post-employment disputes to reach the stage of litigation. As such, the recent decision in Freedom Medical v. Whitman is noteworthy for the extensive discussion of the law regarding restrictive covenants and protection of employer's trade secrets.

Joint Employment, Compliance and Overtime: A Wage-and-Hour Update >
October 30, 2018
The Legal Intelligencer
By: Andrea M. Kirshenbaum
As secretary Alexander Acosta has settled into his position at the U.S. Department of Labor, employers are seeing several new compliance initiatives. From the creation of the Office of Compliance initiatives, to the six-month extension of the payroll audit independent determination pilot program, to the issuance of multiple new opinion letters and field assistance bulletins, the DOL and its Wage and Hour division have been busy at work.

The Legal and Financial Ramifications of Uninsured Status in Workers' Comp Claims >
October 29, 2018
The Legal Intelligencer's Workers' Compensation Supplement
By: Rebecca L. Dillon
Hiring independent contractors is a growing practice for many businesses, allowing them to take on work larger in scope without all of the associated costs involved in hiring full-time employees - including the expense of workers' compensation insurance. However, the use of independent contractors may also lead to the unforeseen risk for businesses of being deemed an uninsured employer or statutory employer under the Pennsylvania Workers' Compensation Act, which can expose businesses to significant expense and criminal prosecution under the act.

Sixth Circuit Joins Others Holding No Pecuniary Loss Needed for Standing to Sue for Benefits Under ERISA >
October 26, 2018
DRI's The Voice
By: Jeffrey M. Brenner
While Article III standing has always been regarded as a prerequisite for a benefits claim under the Employee Retirement Income Security Act (ERISA), what has not always been clear is whether the “case or controversy” requirement for Article III standing requires the litigant to have suffered pecuniary loss.

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