Stay Informed With Our Quarterly Employment Seminars

Did you know COJ holds a quarterly employment law seminar? It’s our goal to keep you informed on recent cases and outcomes. We host these complimentary updates on key legal developments impacting employer-employee relationships.

These webinars are one hour long and include time for a question-and-answer session. Participants are encouraged to interact with presenters and send questions throughout the session. They also can request free copies of any material mentioned during the webinar.

Additionally, both SHRM and HRCI have certified COJ to provide credit for participation in these webinars. Participants who are logged on for the full hour and have purchased credit ($15 per webinar or $40 for the four scheduled through the year) will receive credits.

Here’s a brief synopsis of what we covered in the last update, presented in September by attorney Kurt Goehre.

Wage and Hour Update

One of the recent legal updates included an FTC rule the agency voted on in April that would have invalidated almost all non-compete agreements, with a planned effective date of Sept. 4, 2024.

It would have meant employers had to provide clear, written notice to all workers who signed such an agreement before the Effective Date that their agreement cannot and will not be enforced against them. ​

However, the U.S. District Court for the Northern District of Texas ruled in August in Ryan LLC v. Chamber of Commerce of the U.S., et al., that the FTC did not have statutory authority to issue such broad action and, as a result, the Court enjoined the rule nationwide.​

It means that the non-compete ban didn’t go into effect, and employers do not need to send notices out to their employees/former employees.​ This decision was recently appealed, so there’s more to come on this issue.​

EEOC Update

In a case related to the Equal Employment Opportunity Commission (EEOC) —which oversees laws protecting against discrimination due to pregnancy, childbirth or related conditions—an employee had requested time off for the purpose of freezing her reproductive eggs for possible future use.​

In the case, Paleny v. Fireplace Products (Cal.App. 2024), the employee filed a claim after being terminated, alleging she was discriminated and retaliated against because of her manager’s apparent personal beliefs.

The court ruled in favor of the employer because the subject statute requires pregnancy and a disability or condition related to the pregnancy. In this case, there was no evidence that the employee was experiencing infertility or any other medical condition that gave rise to her desire to undergo the medical procedure (i.e., the procedure was purely elective).​

Egg retrieval and freezing procedures do not generally qualify as a pregnancy-related condition or disability.​ However, some courts have held that such procedures necessitated by infertility (or other condition) could qualify.​

FMLA/ADA Update

The U.S. Court of Appeals for the 9th Circuit recently held that an employer may challenge an employee’s entitlement to the benefits of the Family and Medical Leave Act (FMLA) without the necessity of obtaining a second medical opinion. (Perez v. Barrick Goldstrike Mines, Inc., 9th Cir. 2024)​

In this case, an underground miner claimed he sustained a chest injury when his truck hit the wall of a mine. He then obtained a doctor’s note requesting time off to recover. The employer, based on the medical note, granted the leave, as well as subsequent doctor-approved leave. ​

However, the employer found that not only did no accident ever occur, but that the employee told others that he planned to fake an injury so he could get time off to work on rental properties he owned. ​A private investigator confirmed the employee was not suffering from any chest injury or a serious health condition.​

The employee was terminated and he thereafter filed an FMLA interference claim.​ The ex-employee argued that the employer was required to obtain a second opinion to refute the validity of his original medical certification.​

The court did not agree and held that an employer “may,” but is not required to, obtain a second opinion.​ However, the employer must have clear evidence to refute claimed injury in order to counter an otherwise valid medical opinion.​

Wage and Hour Update

The session also addressed some recent updates that impact wages and hours. For example, under the FLSA, a plaintiff can assert unpaid overtime claims individually and on behalf of others who are similarly situated.​ This is known as a “collective” action.​

The vast majority of courts follow a two-step process. First, the plaintiff may seek conditional certification which then allows court approved notices be sent to potential class members.​ Second, and later in the case, the court reviews the merits and determines if in fact the plaintiff is similarly situated to the other class members.​

A recent Eastern District of Wisconsin decision upended the normal two-step process in these actions. In Laverenz v. Pioneer Metal Finishing, LLC, (Aug. 21, 2024)​, the court held that the two-step process was too lenient and inconsistent with the FLSA requirement that class members be similarly situated.​

Per the Lavarenz decision, plaintiffs have the burden of showing they are similarly situated much earlier in the case and wouldn’t be able to send out class action notices unless they meet their burden.​ This case may be appealed, however.

And another recent decision reminds employers of the potential pitfalls of not tracking all possible work time.​

In Cadena v. Customer Connexx LLC (9th Cir. July 10, 2024) plaintiffs working in a call center as agents for a recycling company used an e-timekeeping software on their computers to track when they clocked in and out.​ In this case, plaintiffs filed a class action for unpaid overtime wages because they had to start up and shut down the computers before and after clocking in/out.

The company’s main argument was that the time spent starting and shutting down the computers was “de minimis,” since it was only a matter of seconds or, at most, minutes.​

The Ninth Circuit reversed a lower court decision and ruled in favor of the employees.​ The case is a reminder that time incurred that’s necessary to work, even if minimal, can be compensable.

Election Season & Political Speech​

The webinar also addressed what employers can and can’t regulate during election season in the workplace. While the First Amendment guarantees citizens the protection of free speech, the right does not apply to private workplaces.

Although private, non-governmental employers generally do have the right to regulate the speech, dress, and conduct, of their employees in the workplace, that right is not without limit.​

​The National Labor Relations Act (NLRA) protects an employee’s right to engage in concerted activities, such as speech at work for the purpose of attempting to improve or address terms and conditions of employment. If an employee’s political discussions implicate working conditions or wages, they potentially could be protected.

The key takeaways are: Be careful before you discipline, even if state law allows discipline of political expression.​ Discussions can easily morph into other, protected topics.​ If you do discipline, make sure it is enforced in a neutral and consistent manner, and you do not give preferential treatment to avoid claims of discrimination.

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Written By:
Law Firm of Conway, Olejniczak & Jerry, S.C.