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Protecting Your Business From the Unexpected

Frank Kollman
06/07/2022
Business Law
While you have heard this expression a thousand times, it is worth repeating:  "It is better to have a good customer than a good contract." If a project has gone as well as can be expected, the terms of the contract become almost meaningless. In fact, if you had to go to the contract to resolve a dispute, there was a failure of some sort. Contracts are more important when things go wrong than when things go right. Unfortunately, things often go...
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Erotic Films Challenged Under the ADA

Frank Kollman
03/03/2020
Disability & Leave
The Americans with Disabilities Act prohibits employment discrimination, but it also requires public accommodations, such as wheelchair ramps and Braille lettering.  Places of public accommodation must be accessible to persons with disabilities. Over the years, the courts have had to deal with whether websites are “places” of public accommodation.  Several federal appeals courts have taken the position that they are not, unless they are...
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Department of Labor Clarifies “Regular Rate”

Frank Kollman
12/19/2019
Wage & Hour
Most employers are familiar with the terms "minimum wage" and "hourly rate," but many are not familiar with the term "regular rate."  Because overtime compensation must be paid at one and a half times an employee's "regular rate," not "hourly rate," you should.  Let's start with an example of the difference. Assume an employee's hourly rate is $20.00 an hour, but he receives bonuses and commissions based on productivity.  His...
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If You Cooperate with the Government, Do Not Lie - An OSHA Lesson

Frank Kollman
12/12/2019
Workplace Safety
A supervisor in North Dakota has been indicted for obstruction of justice in connection with an OSHA investigation of a worker's death.  US v. Reisinger, Case 1:19-cr-00240-DLH (DND, 2019).  The supervisor of forty (40) employees allegedly lied about his knowledge of the work being performed and whether it posed a hazard.  He also is charged with concealing evidence from OSHA in the form of written work orders.  The accident...
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Uber Hit With $650M in Employment Taxes in NJ

Frank Kollman
12/02/2019
Independent Contractors
Uber claims that its drivers are independent contractors.  New Jersey, on the other hand, says that they are employees.  What’s the difference?  At least $650 million in unpaid unemployment and state disability taxes, according to New Jersey. This tax bill should remind you that there are serious penalties for misclassifying employees as independent contractors.  In addition to NJ, the federal and most state governments are becoming more...
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Nineteen State Attorneys General Urge Federal Trade Commission to Ban Non-Compete Agreements

Frank Kollman
11/26/2019
Restrictive Covenants
The Attorneys General of nineteen states, including Maryland, have asked the FTC to ban non-compete agreements nationwide.  While each of their states has the power to ban non-competes, each wants to bypass the state legislatures and ban non-competes by federal agency rulemaking. The letter states: Non-compete clauses in employment contracts prevent employees of one business from leaving and working for or starting another. Using non-competes,...
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Employer's Vague Reason for Discharge Leads to Jury Trial

Frank Kollman
11/12/2019
Employment Discrimination
A federal court in Wisconsin is allowing a discrimination case to go to trial because, among other things, the reasons given for performance problems were too "vague."  As such, a jury could find the "vague" stated reasons to be pretextual, namely, a false reason to cover up illegal discrimination.  EEOC v. Board of Regents of the University of Wisconsin System, 18-cv-602-jdp (W.D. Wis. 2019). The Court, after noting that an employer who lies...
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EEOC Takes Position on Racially or Sexually Charged Language in NLRB Filing

Frank Kollman
11/08/2019
NLRB
As a follow up to my earlier blog on how rude an employee can be to his or her employer while engaging in activity protected by the National Labor Relations Act (“NLRA”), the EEOC has filed an Amicus Brief in a matter before the NLRB chiming in on the subject.  The NLRB had invited interested parties to file briefs as the Board reconsiders “standards for determining whether profane outbursts and offensive statements of a racial or sexual...
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Federal Appeals Court: Cancer and FMLA Leave No Excuse for Being a Bad Supervisor

Frank Kollman
11/04/2019
Disability & Leave
The Sixth Circuit, headquartered in Cincinnati, has affirmed a decision that the termination of an employee with cancer following his return from FMLA leave was not a pretext for discrimination.  Williams v. Graphic Packaging International, Inc.  The employee in question, an upper level supervisor, was apparently mismanaging and intimidating his employees, which only came to light to his boss when the supervisor was out on FMLA leave. Normally,...
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Employers: Don’t Be Part of the Department of Labor’s Statistics

Frank Kollman
10/30/2019
Agency Activity, Wage & Hour
The Department of Labor is reporting that it collected $322 million in back wages for workers in fiscal year 2019, which is a record.  The amount collected in fiscal year 2018 was also a record at that time.  This should put to rest any concerns about DOL enforcement policies under a Republican administration. Most of the cases involved overtime compensation ($186 million), and about $40 million involved failure to pay minimum wage.  In any...
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