Resources

The Family and Medical Leave Act (FMLA) has been around for about 30 years. It is straightforward in its purpose: to provide eligible employees with unpaid leave to bond with a newborn, newly adopted, or newly placed child, care for a seriously ill child, spouse, or parent, or to care for their own serious health condition, without fear of losing their jobs. Yet, in application, many employers have found the FMLA to be equivocal or downright opaque on important requirements under the statute.

In the world of mergers and acquisitions (M&A), representations and warranties are the backbone of a successful transaction. They are designed to protect both the buyer and the seller by allocating risks and ensuring that the deal value is maximized. In this blog post, we will explore the importance of representations and warranties in M&A agreements and provide some strategies for negotiating favorable terms, in addition to discussing the implications of inaccurate representations and the potential remedies available to parties.

The so-called “remote work revolution” has transformed the way we work, with telecommuting becoming the new norm for many businesses in Virginia. As employers and employees adapt to this change, it is essential to understand the employment law challenges that come with remote work. In this blog, we will explore the legal implications of telecommuting, discussing topics like wage and hour laws, workplace safety regulations, and discrimination issues. We will also offer guidance for both employers and employees on how to ensure compliance in a virtual work environment.

In today’s digital landscape, the concept of fair use in copyright law has become increasingly critical for businesses and individuals alike. The line between permissible use and infringement can be blurry, making it essential to understand the intricacies of fair use to avoid potential legal ramifications. Fair use is a legal doctrine that allows limited use of copyrighted material without acquiring permission from the rights holders.

Recently, in Elon Musk’s “what not to do moments,” Part 3, I blogged about a series of tweets by Musk back in May 2018, that an administrative law judge of the National Labor Relations Board (NLRB) concluded had created an “unlawful threat” under the National Labor Relations Act (NLRA) because Tesla employees could reasonably have concluded from the tweets that Musk was threatening them with economic reprisals if the employees supported the formation of a union. Musk’s tweets came in the middle of what the U.S. Fifth Circuit Court of Appeals described as a “tense union campaign” by the United Auto Workers (UAW) at Tesla’s electric vehicle manufacturing plant in Freemont, California.

Elon Musk has become a treasure trove of “what not to do moments” on Twitter for U.S. employers. Recently I blogged about Musk’s twitter exchange dust up with Haraldur Thorleifsson, a disabled Twitter employee, with Musk appearing to question whether Thorleifsson was disabled and criticized his work ethic. Musk subsequently apologized to Thorleifsson, claiming that he had been given bad information, but not before the tweet generated a storm of public criticism of Musk and created potential legal risks for Twitter.

On March 23, 2021, the Fairfax County Board of Supervisors (the “Board”) approved a comprehensive update and modernization – the “Zoning Ordinance Modernization Project (“ZMod”) – of the County’s Zoning Ordinance. At that time, the Board was utilizing special electronic meeting rules so that it could conduct public business necessary to continuation of government during the COVID-19 Emergency (these meeting rules were subsequently amended). ZMOD became effective on July 1, 2021 and applied to all zoning approvals or amendments (i.e., rezonings (including subsidiary plans), special exceptions, special permits, variances, modifications and waivers) approved by the Board, the Planning Commission or the Board of Zoning Appeals after that time.

The Federal Trade Commission (“FTC”) recently voted to extend the public comment period for its proposed new rule to ban employers from imposing non-competes on their workers. The public comment period was extended by the FTC for 30 days, until April 19, 2023. Originally the public comment deadline had been March 20, 2023. The proposed rule has prompted more than 10,000 public comments. The FTC’s rule banning employer non-competes, which was announced on January 5, 2023, “is based on a preliminary finding that non-competes constitute an unfair method of competition,” according to the agency, and “therefore violate Section 5 of the Federal Trade Commission Act.” Read more about the FTC’s proposed ban on worker non-competes here.

In Part 1 of Elon Musk’s “what not to do” employment law moments, I wrote about the possible legal risks of a disparate treatment or hostile work environment employment discrimination claim that can arise under the ADA or Title VII when an employer makes disparaging and insensitive comments about an employee’s protected characteristics. In Musk’s case, he recently engaged in some twitter exchanges that ended with him making ugly comments about a disabled Twitter employee.

As a management-side employment law attorney, I spend much of my time advising employers on how to comply with the ADA’s disability accommodations requirements, no easy task, often using examples of what they should avoid. Thank you, Elon Musk, for providing a stark example this week with tweets  that were publicly dismissive of Haraldur Thorleifsson, a disabled Twitter worker. Musk’s twitter exchange with Thorleifsson was just the latest “Elonian” employment law kerfuffle since taking over at Twitter in 2022, and we’ll discuss the lessons to be learned from it here. Stay tuned for more Musk “what not to do” lessons to follow.

Equal Pay Day was originated in 1996 by the National Committee on Pay Equity to highlight the gap between men’s and women’s wages. The next Equal Pay Day is March 14, 2023. It symbolizes how far into 2023 women must work to earn what men earned in the previous year. Equal pay and pay equality have been exceptionally hot topics in recent years, particularly in light of the ongoing fight” for gender equality and the #MeToo movement. It is crucial for employers to understand their obligations when it comes to paying their employees fairly and equitably.

On February 21, 2023, the National Labor Relations Board (“NLRB”) issued a significant decision in McLaren Macomb, ruling that an employer may not offer employee severance agreements containing broad confidentiality and non-disparagement restrictions because such restrictions amount to an impermissible waiver of the employees’ rights under the National Labor Relations Act (“NLRA”). McLaren Macomb reverses the Trump-era NLRB precedent set in the Baylor University Medical Center and IGT decisions that had generally allowed employers the use of confidentiality and non-disparagement provisions in severance agreements, provided that the employer had not independently violated employee rights under the NLRA in the decision-making process.

The ever-present question for businesses this year is whether the U.S. economy is already in a recession or is slowly heading toward one? Traditional economic metrics show that the U.S. is not in a recession, for now. The Federal Reserve’s aggressive interest rate hikes over the last 12 months have increased the cost of borrowing and slowed consumer demand. But the U.S. economy has shown signs of resilience, expanding at a solid 2.9% annual rate during the fourth quarter of 2022. Unemployment in the U.S. fell to 3.4% in January 2023, its lowest level in more than 50 years. Yet some economists still believe that the country may slip into a mild recession during the first half of this year.

In today’s digital age, data security is a critical concern for individuals, businesses, and governments alike. With the increasing use of technology, the risk of data breaches, unauthorized data access, and theft of sensitive information has become a major concern for organizations of all sizes. At Bean, Kinney & Korman, we often advise clients on the legal protections and best practices for securing their data and minimizing the risks of data breaches.

By most public health indicators, the COVID-19 pandemic is behind us. Remote work, a by-product of the pandemic, is here to stay. At the apex of the pandemic in late 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued a Field Assistance Bulletin (“FAB”) 2020-5 to provide guidance to businesses on “how to track the number of hours of compensable work performed by employees who are teleworking . . .” or working remotely away from any worksite controlled by their employer. The WHD’s focus was to address how to properly calculate compensable time for travel for employees who divided their work time between home and the office. Read more about the WHD’s partial-day telework what-ifs.

A recession is a period of economic downturn that can have significant consequences for businesses of all sizes. Mergers and acquisitions (M&A) activity is often one of the first areas to be affected during a recession, as Buyers become more cautious about making large financial commitments and face challenges in financing new acquisitions. In this blog post, we will explore some of the ways in which a recession could impact M&A activity and deal flow.

The U.S. Department of Education’s Office for Civil Rights (“OCR”) recently issued a Fact Sheet that makes clear to educators, and elementary, secondary, and postsecondary educational institutions that “diversity, equity, and inclusion training and similar activities,” in most circumstances, do not violate Title VI of the Civil Rights Act’s (“Title VI”) prohibition against discrimination based on race, color, or national origin (collectively, here, “race”) in educational programs that receive Federal financial assistance.

On January 5, 2023, the Federal Trade Commission interjected itself into U.S. workplaces in a big way, publishing a proposed rule that, as written, would essentially make it an “unlawful restraint on trade” for employers to restrict an employee’s right to engage in business activities competitive with the employer. While the FTC’s proposed rule is subject to a 60-day public comment period and may ultimately end up looking somewhat different when – or if — it becomes final, in its current iteration the rule would substantially upend the current policies and practices of many U.S. businesses.

Pay transparency – the degree to which employers are open about pay information or are permissive of employees talking with each other about pay — is becoming increasingly popular among employers. By sharing and facilitating the discussion of salary information, employers may be able to promote fairness and equity while building trust between employees and employers. While there are advantages and disadvantages to pay transparency, the pros seem to outweigh the cons when it is implemented correctly. In this blog, we’ll explore the pros and cons of pay transparency, as well as how Virginia’s Pay Transparency law might impact your workplace. By openly discussing salaries and pay expectations, employers can create an environment of trust and transparency that benefits everyone involved.

The holiday season is here, and it’s the most wonderful time of the year! With the winter holidays just around the corner, are you one of the many businesses busily preparing for a holiday office party? Office parties are a wonderful way to generate good will with your employees and strengthen your business culture.