An all too common issue we see in working with businesses is a lack of diligence in requiring hourly employees to fully document their time.  Most do a good job of requiring their employees to document when they first get to work and when they leave.  However, employers must also be diligent in requiring employees to document the time they take for lunch.

In preparing for a recent mediation, I learned that that there has not been a verdict for a plaintiff presenting a pregnancy discrimination case in Kentucky for fifteen years.  That, however, does not mean that the cause of action is dead.  Employers should remain cognizant that the Pregnancy Discrimination Act prohibits employers from discriminating against female employees for “pregnancy, childbirth, or related medical conditions”. In fact, since the Hall v. Nalco Co. decision was rendered by the 7^th Circuit in 2008, Courts have consistently interpreted “related medical conditions” to include pre-pregnancy procedures such as in vitro fertilization procedures. Protecting yourself from a discrimination claim in this context may present unique difficulties as an employers’ institutional knowledge of an employee’s medical condition may depend on the degree to which an employee feels comfortable disclosing the reason for her medical treatment to her supervisor.  Of course, employers who intend to take either an active or passive adverse employment action against a female employee must be prepared to articulate a legitimate, non-discriminatory reason for the adverse employment action.  Employers should keep in mind that an adverse employment decision based upon a female’s medical condition, or absence from work due to an unspecified medical condition, could result in the first favorable verdict for a Plaintiff alleging pregnancy discrimination in recent memory.

Hiring employees for temporary summer employment can be stressful for a small business that is short on time and swamped with the seasonal demands the summer can bring.  Summer employees need to be trained quickly so that they can hit the ground running and start contributing to your success in as little time as possible.  One advantage to seasonal hiring during the summer is that there is an abundant source of young workers who are off from school and able to fill many different positions.  Their demand for wages is often lower because they are not supporting families of their own yet and their availability is very flexible because they are not in school.  It is important that your business follow all legal requirements related to the hiring of young people in order to ensure that the company remains in compliance and is not subjected to penalties or fines.

Earlier this month, Wal-Mart agreed to pay over $4.8 million in back wages and damages to employees across the country for failure to pay overtime wages as a result of an investigation of the U.S. Department of Labor.  The Department of Labor found that Wal-Mart misclassified over 4,500 managers as exempt from federal regulations requiring overtime wages to be paid for work over forty hours per week.

With summer fast-approaching, many employers are now deciding whether to hire summer interns. Undoubtedly, the benefits of an internship extend to both the employer and the intern. The company receives the intern’s services, while the intern enjoys exposure to and experience within his or her chosen field. If your company is considering hiring an intern, however, it is imperative that you seriously evaluate the internship program and policies to ensure that your company is not violating federal law.

Two recent decisions from the Sixth Circuit Court of Appeals highlight the importance of record-keeping in defending discrimination claims.  In each of these two cases, the plaintiffs raised claims of age discrimination, but were unsuccessful in their claims largely due to the fact that their performance reviews and other documents in their personnel files supported the employers’ legitimate reasons for the employment decisions.

It’s hard to miss the latest news reports.  Employers around the country are demanding Facebook passwords from both applicants and current employees in order to monitor employee activity.  While the allure is understandable – in this day and age, almost any negative internet-based comment about an employer can be found by customers, clients and potential employees – the real question is, should an employer take such a drastic step?  Probably not.

Few things are more frustrating for an employer than terminating an employee for cause due to violation of company policy, be it for failing a drug test or some form of misconduct, and then that employee being awarded unemployment benefits. We here at McBrayer PLLC find this result to be all too common, and then it is typically an uphill battle to overturn the award.  In many instances, the problem lies not in the award itself, but in the lack of foresight and preparation which preceded the termination of the employee.  If the first time the issue of unemployment benefits is addressed is post-termination, then the key moment to address the issue has likely been lost. 

Last January, the U.S. Supreme Court expanded those protected under the retaliation provisions of Title VII and included employees who have a close family relationship to a person who has made a complaint of discrimination.  Previously, only those persons who actually made or supported a complaint were protected by law.  However, in Thompson v. North American Stainless, the Supreme Court unanimously held that it is an unlawful employment practice to fire or otherwise retaliate against an employee's "close family member" who has filed claim of discrimination.  In Thompson, two employees were engaged to one another.  The female co-worker filed a claim of discrimination against her supervisors and subsequently, the male was fired.  The male filed a claim of retaliation under Title VII claiming that his termination was in retaliation for his fiancée's discrimination complaint. While the Sixth Circuit held that he did not state a claim under the statute as one who "engaged in protected activity," the U.S. Supreme Court reversed holding that the anti-retaliation provisions protect conduct that may dissuade a worker from making or supporting a charge of discrimination.  As applied in this case, the Court determined that the female co-worker may have been dissuaded from making a claim of discrimination if she knew that her fiancée could be fired as a result.  This case gives a cause of action to the "close family member" for retaliation and opens employers up to additional liability.

While nearly all business owners know that they need to purchase and maintain insurance to cover unexpected loss and liabilities, many discover only too late that the insurance which they purchased does not provide the extent or type of coverage expected.  It is vitally important that any business owner fully understand what his/her insurance does and does not cover and the types of insurance needed.  What insurance is needed will depend upon factors such as the size of the business, the type of business, the number of employees and the risks involved with operation.  As litigation in general increases, particularly in the employment area, the time to ask questions about the scope of one's coverage is not upon service of suit, but rather, at the time insurance is purchased.  In most instances a variety of insurance coverage is advisable, and the cost of the insurance is routinely minor compared to what the cost would be to defend a lawsuit through trial.  Employment practices liability coverage, for example, is becoming increasingly popular for medium to large employers to protect from suits for harassment, wrongful termination, and the like, and such coverage can prove of vital importance in the event of litigation.