Employment Law This Week: Joint Employment, Proposed Retaliation Guidelines, Supervisory Misconduct Defense, Medical Marijuana

Episode 13: Week of February 1, 2016

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See also: An Interview with Michael D. Thompson

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) Wage and Hour Division Offers Guidance on Joint Employment
Our top story this week: The Department of Labor’s Wage and Hour Division offers its interpretation of “joint employment.” The federal Wage and Hour Division issued an Administrator’s Interpretation with new guidelines for joint employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. The Division clarifies that it believes that employers are regularly part of joint-employment relationships with their vendors and business partners. If an employee files a claim or lawsuit and a joint-employment relationship is found, both employers could be found liable for violations. Michael Thompson from Epstein Becker Green goes into greater detail. For more on the Administrator’s Interpretation, click here. See the extended interview here.

(2) EEOC Seeks Public Input on Guidance for Retaliation Claims
The Equal Employment Opportunity Commission (EEOC) is soliciting comments on new guidance for retaliation against employees who file discrimination claims. The agency last offered guidance on the issue in 1998, and the percentage of retaliation claims has grown by roughly half since that time. Taking into account significant rulings from the U.S. Supreme Court and lower courts on retaliation, the proposed guidance, among other things, adds extensive guidelines regarding retaliation against employees seeking accommodations for disabilities and makes clear that the EEOC considers prohibitions on discussing compensation to be highly suspect. To submit your comments, go to regulations.gov by February 24. For more on the EEOC’s new proposed retaliation guidelines, click here.

(3) Eleventh Circuit Upholds OSHA Violation with Participating Supervisor
The U.S. Court of Appeals for the Eleventh Circuit in Quinlan v. Secretary, U.S. Department of Labor limits the supervisory misconduct defense against Occupational Safety and Health Administration (OSHA) citations. At a construction worksite, a supervisor and his subordinate from Quinlan Enterprises were found working on a 15-foot wall without fall protection or a secure ladder. The company was held responsible for the OSHA violation because, in most cases, a supervisor’s knowledge of a violation is imputed to the employer. Quinlan appealed, citing the Eleventh Circuit’s decision in Comtran Group, Inc. v. U.S. Dept. of Labor. In Comtran, the Eleventh Circuit held that, when a supervisor participates in the violation independently, the supervisor’s knowledge of the act is not sufficient to establish that the employer is aware. The Quinlan court disagreed, noting that the Comtran exception does not apply because the supervisor was not the sole participant in the violation. For more on the Quinlan decision, click here.

(4) Judge OKs Firing for Positive Marijuana Test in NM
There are no accommodations for medical marijuana in New Mexico. A district judge in Albuquerque ruled that Tennessee-based Tractor Supply Co. did not violate the law when it fired an employee who tested positive for marijuana. The employee uses medical marijuana under a doctor's recommendation, and he informed a hiring manager of his use during the process. The judge found that the employer had no duty to accommodate the use of a drug that is illegal under federal law. For more on medical marijuana use in the workplace, click here.

(5) In-House Counsel Tip of the Week
Andrew Lauer, General Counsel for Yeshiva University, provides advice on how to manage an employee during the employment lifecycle.

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