Baker Donelson

For more than 125 years, Baker Donelson has built a reputation for achieving results for our clients, both nationally and internationally, on a wide range of legal matters.

As many employers know, OSHA published a Final Rule on May 12, 2016 that amended the Code of Federal Regulations to add additional provisions regarding proper reporting and retaliation for workplace reporting. OSHA took the position that certain workplace policies may deter or discourage proper workplace reporting, including disciplinary policies, incentive policies, and post-accident drug testing policies. In other words, OSHA asserted that a blanket policy that requires drug-testing of any employee after a workplace accident is likely to discourage employees from reporting workplace injuries. Therefore, if an employee is drug-tested after an accident under a blanket policy and disciplined for violation of the policy, OSHA may later determine that the discipline was unlawful retaliation because the employer had no reasonable basis to conclude that drug use may have contributed to the accident. (more…)

Former University of Southern California football player Lamar Dawson’s attempt to be declared an “employee” under the Fair Labor Standards Act (FLSA) was soundly defeated in federal court. Dawson brought the lawsuit on behalf of himself and a similarly situated class of Division I FBS football players in which he alleged that they should be entitled to minimum wage and overtime payments in return for their “work” generating “massive revenues” for their universities. (more…)

It took them more than 46 years but the OFCCP finally released updated guidelines for federal contractors regarding sex discrimination (the last update was in 1970).  The new guidelines are consistent with Title VII and the EEOC’s current interpretation of the statute and provide federal contractors with direction regarding OFCCP’s position on compensation, pregnancy, and harassment, as well as a listing of Best Practices to prevent sex discrimination in the workplace. (more…)

On Wednesday, May 11, 2016, the U.S. Occupational Safety and Health Administration (OSHA) finalized its controversial workplace injury and illness reporting rules.  The new requirements are effective August 10, 2016, with phased-in data submissions beginning in 2017. So why all the fuss about a rule that’s been around since 1971?  Well, under the new rule, all employers who are covered by the recordkeeping regulation and who have 250 or more employees must electronically submit their recordkeeping forms to OSHA. But OSHA didn’t stop there . . . those electronic records of workplace injuries and illnesses will now be posted on OSHA’s website for all to see and review.
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Last week, a federal jury (after only 3 hours of deliberation) awarded a Walmart female pharmacist . . . wait for it . . . $31 MILLION! Maureen McPadden, a 13-year Wal-Mart pharmacist, brought an action alleging retaliatory termination, disability discrimination, and sex discrimination.  McPadden called the verdict, “a message that the little guy has a voice, that Wal-Mart did something wrong.” (more…)

If persistence is what you want from the NLRB, then you are probably happy with the Board’s recent ruling on Murphy Oil USA’s class and collective action waivers.  In case you missed it, the NLRB held that employment arbitration provisions that contain class and collective waivers are unlawful.  The NLRB’s decision came in direct conflict with a recent decision from the Fifth Circuit Court of Appeals.  Indeed, just two years ago the Fifth Circuit reversed a virtually identical NLRB decision, which seemed to decide the issue for good.  The NLRB, however, took another bite at the apple and reignited the controversy in Murphy Oil USA v. NLRB. (more…)

Eddie Employee is an hourly employee of Company, Inc. Eddie notifies Sally Supervisor that he will undergo surgery, and will need continuous medical leave to recover. While out on leave, Eddie’s co-workers, who are “friends” with him on social media, report to Sally that Eddie is posting photographs of him jet-skiing, dancing, and partying on a cruise to the Caribbean. To verify these reports, Sally logs onto her social media account, and sees these photographs. As a result, Sally terminates Eddie’s employment. Does the Company face liability under the Family Medical Leave Act (“FMLA”)? (more…)

Fall is upon us and the holiday season will soon follow. Along with the joy of this special season often comes requests from civic groups to partner with for-profit companies for fundraising or other charitable purposes. For example, the local Rotary Club might request that its members serve as your restaurant’s wait staff for a night with all tips and donations going to a charity of its choosing; or a charitable organization may offer to assemble your company’s mass mailings in exchange for a donation.  For-profit organizations must, however, carefully consider the Fair Labor Standards Act prior to using volunteers. Because, if a court or the Department of Labor (“DOL”) deems that a volunteer actually performed the services of an employee, that person must be paid at least the minimum wage and overtime if applicable under the FLSA. (more…)

It is a common practice for employers to check criminal backgrounds or credit ratings of potential, and sometimes current, employees.  Background checks that provide this type of information are helpful to employers when evaluating candidates for employment, as such information can help safeguard a business and limit exposure to liability for negligent hiring.  When an employer runs a background check, however, it must be sure to comply with the many requirements of the federal Fair Credit Reporting Act (FCRA). (more…)