Articles

October 8, 2019

Employment Law Update: Arbitration Clauses in Employment Agreements – October 2019

Arbitration Clauses in Employment Agreements:  Keeping Them Enforceable  By:  Malissa Wilson Mandatory arbitration clauses in employment contracts reduce the possibility that legal action will be taken against employers.  Wrongful termination, wage and discrimination claims can all be resolved in a private process before a disinterested third person, rather than publicly in court before twelve jurors. While enforceable, arbitration clauses in employment agreements must still comply with basic principles of contract formation.  For instance, an employee can still raise misrepresentation, mistake, and undue influence as defenses to the enforcement of an employment agreement containing an arbitration clause.  In drafting arbitration clauses, it is important that the language is written in a way that is not confusing (use of terms that are vague or not commonly understood) or hard to read (font size is too small).  It is also important that the clause is fair by not placing more of the cost to arbitrate on the employee or placing unreasonable limitations on damages or the proceedings themselves. The arbitration clause should name the arbitration organization, such as the American Arbitration Association, where the claim will be filed and whose rules will be followed. When presenting an arbitration clause to potential and current employees, human resource personnel should go over the clause with the employee; answer any questions an employee may have; and, not rush or pressure the employee into signing the agreement.  Last, the agreement must be signed indicating an understanding that the employee is waiving the right to pursue employment-related claims […]

June 6, 2019

Employment Law Update: Failure to File Charge of Discrimination Is Not The Death Knell For A Discrimination Lawsuit

Failure to File Charge of Discrimination Is Not The Death Knell For A Discrimination Lawsuit  By:  Malissa Wilson & Sam Kapoor In a recent decision, the U.S. Supreme Court opened the door for employees to bypass filing a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) before filing suit.  The Court unanimously decided, in Fort Bend County v. Davis, that Title VII’s charge-filing requirement is procedural and not jurisdictional. By making this finding, the Court for the first time made clear that federal courts have the authority to hear Title VII claims that are not the subject of a Charge of Discrimination, and that the charge-filing requirement could be waived by employers for failure to timely assert it as a defense. Title VII of the Civil Rights Act of 1964 outlines a specific process for filing employment discrimination claims. Title VII instructs employees to file a Charge of Discrimination with the EEOC or equivalent state agency stating the specific claim(s) of discrimination before filing litigation in federal court. If the EEOC chooses not to sue or has not acted in response to the charge, employees have then “exhausted” their claims and may pursue them in federal court. In Davis, the employee filed a Charge of Discrimination with the EEOC asserting sexual harassment and retaliation claims. While her charge was pending, she was fired for attending a church event.  On an EEOC intake form, she handwrote “religion” in an attempt to amend her charge to add an additional claim for religious discrimination based on her firing. After years of litigation, and with only the religious discrimination […]

March 12, 2019

Employment Law Update: Spring Has Sprung Proposed Overtime Rule and Confusion Over Wellness Incentives

The seasons have changed from Winter to Spring, but the EEOC’s position regarding wellness incentives remains the same. This year’s stalemate over employee wellness programs has increasingly caused employers to ask: have wellness incentives become more trouble than they are worth? In a dramatic shift from its former endorsement of wellness incentives, the Equal Opportunity Employment Commission (EEOC) has invalidated the incentive provisions of its wellness program regulations. The result: since January 1, 2019, when the EEOC regulations became ineffective, employers have been in limbo when it comes to implementing their employee wellness programs, with no guidance from the EEOC to speak of.

August 1, 2018

Employment Law Update: Summertime and Taking Leave Is Easy – August 2018

Summertime and Taking Leave Is Easy By: Malissa Wilson Summertime brings summer vacations and holidays.  However, for employers, it can also bring a pattern of Friday and Monday absenteeism by employees on intermittent leave under the Family Medical Leave Act (FMLA) or, perhaps in these instances, better referred to as the “Friday Monday Leave Act.”  Understandably, this pattern may raise the suspicion of an employer who questions the validity of the absence, but feels there is no recourse for fear of violating the FMLA.  However, employers, have no fear, there are ways to address the matter without running afoul of the FMLA. The FMLA allows eligible employees of covered employers to take unpaid, job-protected leave for a specified family or medical reason with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  Once it has been determined that an employee is eligible for leave under the FMLA, leave can be taken all at once or intermittently. It is intermittent leave that gives rise to the Friday/Monday absence pattern. Once an employee is certified for intermittent FMLA, an employer can request recertification every 30 days for pregnancy, chronic or permanent/long term conditions, none of which have a specified minimum duration of incapacity, provided the recertification is requested in connection with an absence and it is made on a “reasonable basis.”  If circumstances change significantly, or the employer receives information that cast doubt on the continuing validity of the certification, recertification […]

April 25, 2018

Employment Law Update: National DNA Day – April, 25 2018

Employers Beware: Collecting Genetic Information on Employees Could Lead to Litigation – In 2003, Congress designated April 25th as National DNA Day. The day marks the 50th anniversary of the discovery of DNA’s double helix in 1953 and celebrates the latest advances in genetics. However, these genetic advances have adversely impacted the workplace prompting Congress to pass the Genetic Information Nondiscrimination Act (GINA) prohibiting genetic information discrimination.

April 11, 2018

Political Contributions: Know Your Limits by Spencer Ritchie

In Mississippi, every year is an election year. This election year, however, is shaping up to be one of the most memorable in the state in decades. Many Mississippians will seek to play an active part in these elections by contributing to campaigns and political parties. Such contributions are subject to federal and state campaign finance laws. Below is a summary of major restrictions….

January 24, 2018

Employment Law Update: Workplace Sexual Harassment – January 2018

In the wake of recent sexual misconduct allegations against numerous public figures, the U.S. Equal Employment Opportunity Commission (EEOC)—the agency responsible for enforcing federal laws prohibiting workplace harassment—has reported a deluge of visits to its sexual harassment website. And the National Women’s Law Center—an organization that disseminates information about the legal definition of harassment and how to file charges with the EEOC—has seen a five-fold increase in the number of calls about sexual harassment. Many expect this increased awareness of improper sexual behavior will lead to a dramatic increase in the number of workplace sexual harassment claims.