July L&E Update from Baker Donelson

Submitted by Firm:
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Firm Contacts:
Jennifer L. Anderson, Kathlyn Perez, Phyllis G. Cancienne, Robert C. Divine
Article Type:
Legal Update

With summertime in full swing, the weather isn't the only thing heating up. Government contractors are facing liability under the federal False Claims Act, employers are taking a closer look at what "drives" employees and employers are trying to stay in compliance with the current DOL laws – but these are just a few of the things in the line of fire this month. On top of that, the legislation blocking the labor department's fiduciary rule has moved forward. Keep reading for this month's updates.

Medical Leave as a Reasonable Accommodation under the ADA: How Far Must an Employer Go?

Michael R. Ewing, 615.726.5552,

On May 9, 2016, the EEOC released further guidance on the provision of medical leave as a reasonable accommodation under the ADA. While the guidance reiterates the Commission's previous position that employers must consider unpaid leave as a potential accommodation, it stops short of providing concrete parameters for employers to operate within. When is a request for additional leave unreasonably long? When would it pose an undue hardship? Questions like those were left open by the EEOC to be determined on a case-by-case basis. The guidance did make clear, however, that this issue is high on the EEOC's priority list, and clearly, the Commission believes that medical leave beyond the FMLA, and beyond an employer's leave policies, are mandatory considerations during the good faith interactive process. Whether additional leave must be granted as a reasonable accommodation, of course, depends on the circumstances. More...

The DOL Isn't Done Yet and Non-Compliance is Getting More Expensive Than Ever

Dena H. Sokolow, 850.425.7550,

Employers around the country are busy trying to keep up with the fast and furious rule-making from the Department of Labor. From OSHA reporting requirements, the persuader and fiduciary rules and the new overtime regulations, this unprecedented activity from the DOL has kept employers scrambling to understand the current law and stay in compliance. But the DOL isn't done yet. More...

House Appropriations Labor Legislation Blocking the Labor Department's Fiduciary Rule and Other Regulations Moves Forward

Sam Sadle, 202.508.3476,

On Thursday, July 7, the House Appropriations Labor Subcommittee approved a FY2017 appropriations bill for the Departments of Labor, Health and Human Services, and Education. The bill would provide $12 billion for the Labor Department, a reduction of $138 million from FY2016 funding levels and $765 million below the President's budget request.  More...

Fairness and Employee Motivation

Mark A. Fulks, 423.975.7655,

A positively motivated workforce is the linchpin of organizational effectiveness and efficiency. This is why employment motivation attracts considerable attention from management scholars and practitioners alike. Motivation drives employees, individually and collectively, in the workplace. Whether an employee is successful or shirking, dedicated or apathetic, behaving or misbehaving, his/her output is the result of motivational forces. Of course, employee output includes complaint, grievances and, in extreme cases, lawsuits. Thus, understanding the forces that drive employees can help employers mitigate legal exposure.  More...

Health Care, Defense and Other Government Contractors Will Face False Claims Act on Implied False Certification Theory

Robert E. Hauberg Jr., 601.351.2455,
Danielle Trostorff, 504.566.5224,

In light of the June 16, 2016, opinion of the United States Supreme Court in Universal Health Services, Inc. v. United States ex. rel. Escobar, government contractors can face liability in certain instances under the federal False Claims Act (FCA) for making an "implied false certification." Because neither of the courts below used this new interpretation of the FCA, the court sent the case back for reconsideration on whether an FCA violation had been pled sufficiently. In Universal Health Services, failing to disclose that the staff of the mental health facility providing services to a Medicaid beneficiary did not meet statutory and regulatory requirements for proper licensing and supervision constituted misleading, implied certification.  More...

Handling Hashtags in the Workplace

Zachary B. Busey, CIPP/US, 901.577.8164,

The hashtags associated with our current social and political landscape are powerful. From #BlackLivesMatter to #BlueLivesMatter, #ImWithHer to #ImWithHim and #NeverHillary to #NeverTrump, if a picture is worth a thousand words, then these and other hashtags can be worth tens of thousands. So what happens when hashtags – along with the words and emotions they generate – move into the workplace? How do employers respond? There is no one-size-fits-all answer, but keep reading for guidance.  More...