EEOC’s Proposed Rule on Employee Health Wellness Programs

Posted on June 29th, by Editor in Counseling & Compliance Training. Comments Off on EEOC’s Proposed Rule on Employee Health Wellness Programs

By DeMaris E. Trapp

On June 19, 2015, public comments were submitted for the EEOC’s much anticipated proposed rule to amend the Title I of the ADA to clarify how the statute applies to certain employee health wellness programs. The EEOC’s stated goal for the rule is to harmonize wellness programs’ use of incentives to encourage participation with the ADA’s requirement that disability-related inquiries and medical exams as part of a wellness program must be voluntary and not penalizing in nature.

The Issue: Incentivizing Wellness Programs

The ADA generally prohibits employers from making disability-related inquiries or requiring medical examinations, but provides an exception for voluntary medical examinations, including voluntary medical histories, which are part of a wellness program.  The wellness program is voluntary so long as an employer neither requires participation nor penalizes employees who do not participate.  Prior to the EEOC’s proposed … Read More »


Worth the Fight: Conditional Certification of FLSA Collective Actions is Not Automatic

Posted on June 23rd, by Editor in Counseling & Compliance Training, Wage/Hour Class Actions. Comments Off on Worth the Fight: Conditional Certification of FLSA Collective Actions is Not Automatic

By William R. Horwitz

Conventional wisdom holds that courts reflexively grant motions for conditional certification in Fair Labor Standards Act (“FLSA”) collective actions. As a result, some employers do not even oppose these motions. They are making a mistake. As two recent decisions demonstrate, an employer that opposes these motions has a chance to defeat them or, at least, narrow the scope of the collective.

The Allegations

Earlier this month, judges in the U.S. District Courts for the Southern and Eastern Districts of New York issued decisions on motions for conditional certification in Mata v. Foodbridge LLC, 2015 WL 3457293 (S.D.N.Y. June 1, 2015), and Anjum v. J.C. Penney Co., 2015 WL 3603973 (E.D.N.Y. June 5, 2015). The plaintiffs in both cases were non-exempt employees asserting claims for violations of the FLSA and New York Labor Law, alleging (among other things) that their … Read More »


The DOL’s Upcoming Proposed Revisions to the FLSA’s White Collar Exemption Regulations

Posted on June 18th, by Editor in Counseling & Compliance Training. Comments Off on The DOL’s Upcoming Proposed Revisions to the FLSA’s White Collar Exemption Regulations

By Dennis Mulgrew

This month the Department of Labor is expected to propose, for the first time since 2004, revised regulations concerning the executive, administrative, professional, outside sales, and computer exemptions under the Fair Labor Standards Act. These revisions were prompted by President Obama’s March 13, 2014 memorandum to the Secretary of Labor, which stated that the exemptions “have not kept up with our modern economy” and which “direct[ed] [the DOL] to propose revisions to modernize and streamline the existing overtime regulations.” After the memorandum was issued, the agency began writing proposed regulations and announced on May 5, 2015, that it had completed drafting them and had submitted them (as required by Executive Order 12866) to the Office of Management and Budget for review.

Procedurally, the “proposed rules” will be published in the Federal Register (an action known as a “Notice of … Read More »


New Guidance Regarding Employee Handbooks Part Five: Rules Restricting Employees From Leaving Work: What Are The Boundaries?

Posted on June 12th, by Editor in Audits/Due Diligence. Comments Off on New Guidance Regarding Employee Handbooks Part Five: Rules Restricting Employees From Leaving Work: What Are The Boundaries?

By Valerie Dutton Kahn

This post is the fifth in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules Here, Employee Conduct Rules, Rules Related to Company Logos, Copyright, and Trademark  and Rules Restricting Photography and Recording.  While the recent guidance was issued by the National Labor Relations Board (NLRB), (found here) this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.

Restrictions on Leaving Work: Language to Avoid

Although the NLRB acknowledges that employers have a legitimate interest in keeping employees from leaving their posts without warning, … Read More »


Labor & Employment Team Secures Arbitration Victory for CDI

Posted on June 8th, by Editor in Counseling & Compliance Training. Comments Off on Labor & Employment Team Secures Arbitration Victory for CDI

Partner Tom Barton and associate Dennis Mulgrew obtained a complete victory for the firm’s client, CDI, following four years of litigation that culminated in a two-week arbitration. In May 2010, Eileen Helfand, a senior client executive, filed suit in Essex County Superior Court against CDI and her supervisor claiming age and gender discrimination, retaliation and hostile work environment because she was disciplined and demoted for failing to diversify her business activities even though she was one of the company’s top revenue generating sales executives.

After the lawsuit was filed, CDI moved to compel arbitration and was successful in doing so after convincing the New Jersey appeals court to reverse the trial court’s refusal to compel arbitration.  The parties arbitrated the case before Arbitrator Jon Sands in November, 2014.  In all, more than 7,000 pages of testimony were taken that included numerous witnesses and … Read More »




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