No one should gratuitously insult anyone else. However, if each of us arbitrarily decide to create new meanings for any word, contrary to an accepted meaning, or to create new words unknown to everyone around us, and government then punishes anyone who does not use our subjectively created devised vocabulary as we’ve chosen to define it, the language will ultimately descend into a subjectively chaotic babble. The purpose of language is to communicate, not to … Read more
May 10, 2016
Personal Liability of HR Directors and Other Supervisors for FMLA Violations
In Graziadio v. Culinary Inst. of America, 216 U.S. App. LEXIS 4861 (2nd Cir. 2016) the U.S. Court of Appeals for the Second Circuit held that individuals can be held personally liable for violations of the federal Family Medical Leave Act (“FMLA”). The court specifically held that the defendant’s Human Resources Director could be adjudged personally liable for the employer’s alleged violations of the FMLA because the HR Director was also arguably an “employer” … Read more
Mar 1, 2016
When Administrative Agencies Break the Laws They Enforce Because Even They Don’t Know What They Mean – What Good Is Their “Expertise”?
Many laws give authority to administrative agencies to actually interpret and enforce particular laws. For instance, the Equal Employment Opportunity Commission (“EEOC”) is empowered to interpret and to enforce federal laws prohibiting wrongful discrimination in employment. The National Labor Relations Board (“NLRB”) is similarly responsible for the interpretation and enforcement of federal labor laws.
Agencies such as the EEOC and the NLRB often issue interpretive guidelines. Those guidelines are supposed to explain what the specific … Read more
Jan 28, 2016
Update to Fairness and Fares: The Challenge to the Independent Contractor in Oregon
In a blog post earlier this week we highlighted a recent Oregon Supreme Court decision which held that taxi cab drivers are employees, not independent contractors, of the cab companies they work with. We suggested that this holding implicitly threatened the business models on which companies such as Uber, Lyft and similar enterprises in the emerging “sharing economy” have grown. A recent article in the ABA Journal concerning the recently announced settlement of a California … Read more
Jan 27, 2016
Fairness and Fares: The Challenge to the Independent Contractor in Oregon
Law often lags behind reality. In Broadway Cab LLC v. Employment Department, the Oregon Supreme Court held that a taxi company’s drivers are “employees” and not “independent contractors”. Consequently, the company is obligated to pay unemployment insurance taxes on wages earned by its drivers in 2008 and 2009.
Broadway Cab argued that its drivers performed services only for the passengers who paid the drivers and not the cab company to which the drivers actually … Read more
Sep 1, 2015
Proving Once Again that No Good Deed Should Go Unpunished
An associate in a Boston law firm claimed that his former employer had unlawfully retaliated against him by not giving him letters of recommendation he wanted after he filed a complaint of racial discrimination against his employer. His employer successfully defended the claim through trial and appeal after the court refused to grant the employer summary judgment on that claim.
The suggestion though that you have to give good letters of recommendation to every former … Read more
Jun 25, 2015
NFL Cheerleaders Won’t Dance for Free Anymore
There are six NFL franchises that don’t have official cheerleading squads. That number may soon increase. Regardless, anyone who ever thought NFL cheerleaders just dance for the fun of it was wrong.
NFL cheerleaders have generally worked as volunteers or as independent contractors choosing to ply their art without payment from the team they cheer aside from the chance to be part of the “team”. No one makes them compete to become NFL cheerleaders and … Read more
May 11, 2015
When State Supreme Courts Break the Law
It’s fun to see lawyers and courts suddenly waking up to discover that they have been chronically violating the same laws many private employers have struggled under for years, such as the Americans with Disabilities Act or “ADA”.
As the American Bar Association Journal (ABA) reported, many state bar associations, under the supervision of their respective state supreme courts, have regularly inquired about the mental health history of applicants for admission to their state’s bar … Read more
Feb 24, 2015
Employer Obligations under the Family Medical Leave Act and the Changing Definition of Marriage
The U.S. Department of Labor has scheduled announcement that it will issue a Final Rule effective March 27, 2015 expanding the definition of “spouse” for purposes of determining an employee’s entitlement to Family Medical Leave. Specifically, the new rule will define a “spouse” for purposes of FMLA leave in accordance with the law of the state where the marriage was celebrated rather than under the law of the employee’s residence. Thus, a same sex marriage … Read more
Dec 15, 2014
Are You Required to Pay Overtime to People Who Work in Your Home?
Both federal and Oregon wage and hour law require employers to pay covered employees one and one-half times their regular wage for all hours worked in excess of 40 in a workweek. As the funny commercials featuring that gecko would say, “everybody knows that.” What many people may not know, however, is that the overtime requirements also apply to employees who work in your home.
Back in 1974, the federal Fair Labor Standards Act, first … Read more
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