Edward Sharkey's blog

Supreme Court: The EEOC Can't Just Sue You Without Trying to Work it Out First

Posted by Edward Sharkey on Mon, 07/20/2015 - 04:00

In a unanimous decision, the Supreme Court affirmed that the EEOC must try to work out disputes before it simply sues an employer.

Can You Fire An Employee for Hitting a Coworker? What If He Was Harrassing Her?

Posted by Edward Sharkey on Thu, 05/07/2015 - 04:00

Employers can get into trouble if they discharge an employee after he or she has complained about workplace sexual harassment. If the employee proves the termination was retaliation for the complaint, the business can be liable. This is true even if the original complaint was unfounded. A Pennsylvania court recently considered a retaliation case with a twist: an employee hit her coworker, and she claimed it was because of harassment.

Do Businesses Now Have to Accommodate Allergies as if They Were Disabilities?

Posted by Edward Sharkey on Thu, 04/30/2015 - 04:00

Businesses continue to struggle with the legal definition of “disability” under anti-discrimination laws. One area that remains obscure is allergies. Does a seafood restaurant need to modify its kitchen to accommodate diners with allergies to shellfish? Can a parent with hay fever force his child’s soccer league to hold games indoors?

New Ordinances Restrict the Use of Background Checks by Baltimore City, Montgomery County, and Prince George’s County Employers

Posted by Edward Sharkey on Wed, 04/15/2015 - 04:00

We have frequently posted about the federal government’s aggressive actions against employers that use background checks in the hiring process. Now, businesses also need to worry about local laws that restrict the practice.

Using Unlicensed Images on a Website Can Be Costly

Posted by Edward Sharkey on Mon, 04/06/2015 - 04:00

It is common for startup businesses to use unlicensed images in their marketing materials. Licenses cost money, and on the internet images seem to be there for the taking. Using even one unlicensed image, however, can cost you. Earlier this month, an image licensing company accepted an $8,000 settlement offer from a Washington, DC patent attorney for his unlicensed use of stock images on his website.

Reminder: The Government Will Apply Its Old Rules to Your Modern Social Media Campaign

Posted by Edward Sharkey on Thu, 04/02/2015 - 04:00

We previously posted about the Federal Trade Commission’s effort to warn businesses that online marketing campaigns are subject to the same rules as traditional forms of advertising, like radio and print ads. Charges recently filed by the FTC against an advertising agency are a good reminder of this reality.

ADA Alert: Employers Continue to Struggle to Figure Out What Accommodations are Reasonable

Posted by Edward Sharkey on Wed, 03/18/2015 - 04:00

We frequently post about ADA lawsuits filed against businesses. Among the most commonly litigated issues is whether a particular employee’s request for an accommodation is reasonable. The issue is important because the law only requires “reasonable” accommodations for disabilities. In a recent opinion, a federal court reminds businesses that what is reasonable depends on fact-specific inquiries, not general rules.

Unpaid Interns Win Another Victory Against Employers

Posted by Edward Sharkey on Tue, 03/03/2015 - 05:00

We previously posted about the wave of litigation concerning the use of unpaid interns. It started with a lawsuit filed by individuals who interned on the set of the Fox Searchlight film “Black Swan.” In June 2013, a federal trial court in New York ruled in the interns’ favor, holding that they had been misclassified and were employees entitled to pay under federal law. Fox has appealed that ruling.

EEOC wins latest battle against employers using background checks in hiring.

Posted by Edward Sharkey on Fri, 10/24/2014 - 04:00

Chalk one up for the EEOC in its campaign to target employers for using background checks in hiring - all while the EEOC uses background checks to hire its own employees. In the latest case, the EEOC sued BMW for using criminal background checks to make hiring decisions. BMW sought discovery into the EEOC’s use of background checks on the theory that what the EEOC does in hiring should be evidence of what is reasonable. The magistrate judge overseeing discovery rejected BMW’s motion to compel.

Fed-Ex Case Highlights Risks of Classifying Workers as Independent Contractors

Posted by Edward Sharkey on Thu, 09/25/2014 - 04:00

A federal court in California recently rejected the independent contractor model that Fed-Ex has been using to employ about 2300 drivers in the state for years. Fed-Ex classified them as independent contractors. The drivers all agreed when they signed up. No matter. In every jurisdiction, the terms of the relationship determine the status, not the parties - even if everyone agrees.

The consequence? Fed-Ex is exposed to multiple millions of dollars of liability for all sorts of costs associated with having employees - overtime, health care, retirement benefits, workers comp, paid time off. Could it all have been avoided? The answer is complicated.

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