Labor and Employment Insights
Analysis and practical guides on labor and employment.
56 articles, checklists, and guides on labor and employment law, written by the attorneys at MC Law. Every piece is general information, not legal advice—for a specific matter, contact the firm.
Employment Arbitration Agreements After Epic Systems and the EFAA
Employment arbitration agreements are simultaneously more enforceable and more limited than they were a decade ago. Epic Systems settled that class and collective action waivers are enforceable, and the Supreme Court has continued to remove obstacles to compelling arbitration. At the same time, Congress carved sexual assault and sexual harassment claims out of the Federal Arbitration Act entirely, state legislatures have tested the boundaries of preemption, transportation worker exemptions have expanded, and mass arbitration has turned the employer-favorable fee structure into a liability. This article covers what the Federal Arbitration Act does and does not reach, how the EFAA operates and how broadly it applies, the doctrines that still defeat agreements, and how to draft and administer a program that actually works.
Employee Monitoring and Workplace Privacy: A Practical Guide
Employers can monitor a great deal and are prohibited from monitoring some of it, and the line is drawn by a patchwork of federal wiretap law, state statutes with sharply different consent rules, labor law, and the employer's own policies. This guide covers what is permitted and what the practice requires. It starts with the reasonable expectation of privacy framework and the notice and policy foundation that eliminates most exposure, then works through the categories: computer and email monitoring, productivity and keystroke software, video surveillance, location tracking, telephone and video call recording, and biometric systems. It covers the statutes that impose the strictest requirements, including all-party consent recording laws and state biometric privacy acts with private rights of action, and the state consumer privacy laws that now reach employee data. Later sections address personal devices, remote work, social media and off-duty conduct, testing, and investigations.
Wage and Hour Law Under the FLSA: Overtime, Exemptions, and Off-the-Clock Work
Wage and hour law produces more employment litigation than every discrimination statute combined, and almost all of it is avoidable. The Fair Labor Standards Act requires a minimum wage and overtime at one and a half times the regular rate for hours worked over forty in a week, and it exempts a narrow set of employees who satisfy both a salary test and a duties test. This article explains how those pieces actually work: how to compute the regular rate and what must be included in it, why the salary basis test defeats employers who make improper deductions or pay a day rate, and why job titles are legally irrelevant to the duties analysis. It works through the executive, administrative, professional, computer, and outside sales exemptions and the highly compensated shortcut, including the Supreme Court's decision in Helix Energy v. Hewitt on day rates. It then addresses the off-the-clock claims that drive most litigation, including the Portal-to-Portal Act, donning and doffing, integral and indispensable activities after Integrity Staffing v. Busk, remote work, and the burden-shifting rule of Anderson v. Mt. Clemens Pottery that punishes employers with bad records. Sections on recordkeeping, collective actions, liquidated damages, willfulness, and the state law overlay follow, with an audit checklist, a worked example, an FAQ, and related reading.
Remote and Hybrid Workforce Toolkit
Remote and hybrid work raises two distinct sets of questions that companies routinely conflate. The management questions—how people collaborate, how performance is measured, whether hybrid schedules are coordinated—are real and are not legal problems. The legal questions turn almost entirely on one fact: where the employee physically works, which determines the applicable employment law, the payroll registrations, the workers compensation coverage, and frequently the company's tax nexus. This toolkit addresses both. It covers eligibility and approval, the approved work locations control and the reporting obligation that makes it enforceable, timekeeping and pay for remote non-exempt employees, equipment and expenses, home workspace safety, security and monitoring, accommodation requests, international work, and the performance and inclusion practices that determine whether the arrangement actually works.
Hiring and Onboarding Compliance Toolkit
Hiring is the densest compliance sequence in employment law, and nearly every step is governed by a rule that differs by state and by city. This toolkit runs the sequence in order—the posting and its pay range, the application and the questions that may not be asked, the interview and the automated tools that screen it, the conditional offer that triggers the background check, the FCRA and fair chance process, verification and payroll setup, and the documents signed on day one that determine whether inventions are assigned and disputes are arbitrated. It closes with the multistate architecture that lets a single process work everywhere, and the records that make each step defensible. It closes with the onboarding paperwork and the restrictive covenant questions that should be settled before the first day rather than after it.
Employee Benefits Compliance Toolkit: ERISA, COBRA, and the Affordable Care Act
A group benefits program is a set of ERISA plans, each requiring a written document, a summary plan description, a fiduciary process, and a filing calendar—and most small and mid-sized employers have insurance certificates instead of plan documents, an insurance broker instead of a fiduciary process, and no idea which obligations run to the plan rather than to the carrier. This toolkit builds the program from the plan documents outward: the fiduciary structure and the fee analysis the Consolidated Appropriations Act now requires, the health plan overlay of COBRA, the ACA mandate and reporting, HIPAA, parity, and the newer transparency obligations, the retirement plan operational requirements, and the correction programs that exist because these failures are common. It sorts the plan documents, the fiduciary process, the notice calendar, and the reporting obligations into the order they actually come due. It also identifies where the carrier's obligations end and the employer's begin, which is the single most common source of unrecognized liability.
Administering COBRA and Group Health Plan Compliance
Group health plan compliance is administratively unglamorous and legally unforgiving, and COBRA is the part that generates the most litigation because the violations are documentary and uniform. A notice sent late, sent to the wrong address, or missing a required element supports statutory penalties per day per beneficiary, and the same defective template goes to everyone. This guide covers COBRA end to end: who is covered, what events trigger continuation, how long it lasts, the four notices and their deadlines, premiums and termination, and how the requirements interact with Medicare, severance, and the Affordable Care Act marketplace. It then covers the surrounding group health plan obligations that share the same administrative infrastructure, from ERISA documents and reporting through the newer transparency and fee disclosure rules.
Union Organizing and the NLRA: What Employers May and May Not Do
Most employers first encounter labor law after a petition is filed, when the rules that were broken were broken months earlier by managers who had never heard of them. This article explains what the National Labor Relations Act actually protects and what it forbids. It starts with Section 7 rights, which apply to nearly all private-sector employees whether or not a union is involved, and the protected concerted activity doctrine that reaches ordinary conversations about pay and working conditions. It then walks an organizing campaign from card signing through election, covering what supervisors may say and what they may not, the solicitation and distribution rules that must exist before a campaign begins, and the bargaining orders that can follow serious violations. Later sections address bargaining unit determinations, supervisor status, the duty to bargain in good faith, strikes and lockouts, Weingarten rights, decertification, and the work rules and handbook provisions that generate unfair labor practice findings at non-union employers, with a worked example, a supervisor briefing script, and an FAQ.
Hiring With Background Checks: FCRA Compliance, Ban-the-Box, and Adverse Action
Running a background check is a regulated act, and the regulation comes from three directions at once. The Fair Credit Reporting Act governs the mechanics—what you disclose, what you authorize, what you send before and after a decision, and in what form. Title VII and the EEOC's guidance govern whether the criteria you apply have a discriminatory effect. And a growing body of state and local fair chance laws governs when you may ask, what you may consider, and what individualized assessment you must perform before rejecting someone. This guide walks the process end to end, from the job posting through the adverse action letter, identifies the specific defects that generate class actions, and covers the related screening practices that carry their own rules.
Employment Law Toolkit: From Hiring Through Separation
Employment law is not one body of law but a dozen overlapping ones, and a small employer encounters them in a predictable sequence as each employee moves from applicant to alumnus. This toolkit follows that sequence. It covers what must be right before a job is posted, what an offer letter should and should not say, the classification decisions made at hire that determine years of wage exposure, the handbook and the policies that actually get litigated, the leave and accommodation machinery that trips up employers with no dedicated HR function, the documentation habits that decide termination cases long before termination, and the separation mechanics that turn a former employee into a plaintiff or into a signed release. Each stage links to the underlying articles and checklists and to the primary authority a practitioner will need.
Whistleblower and Retaliation Claims: SOX, Dodd-Frank, the False Claims Act, and State Law
Retaliation is the most frequently alleged employment claim in the United States, and it is the claim that survives when the underlying complaint fails. This article explains the overlapping statutes and how they differ where it matters. It covers the elements common to every retaliation theory, then works through the major federal regimes: Sarbanes-Oxley Section 806 with its contributing-factor standard and administrative exhaustion, the Dodd-Frank SEC program with its bounty awards and the reporting requirement the Supreme Court imposed in Digital Realty, the False Claims Act with its qui tam mechanism and separate anti-retaliation provision, and the twenty-plus statutes OSHA administers, several with filing periods as short as thirty days. It then covers state public policy wrongful discharge, what counts as protected activity and adverse action, the causation standards that decide cases, and the program design that prevents claims, with a worked example, an investigation checklist, and an FAQ.
Preparing for a Department of Labor Wage and Hour Audit
A Wage and Hour Division investigation is a document-driven examination in which the employer's own records determine the outcome, and where the absence of records is resolved against the employer. Most investigations begin with a single employee complaint and expand to the entire workforce, the entire location, and in some cases every location the employer operates. This guide covers what triggers an investigation, what the investigator has authority to demand and what they do not, how the process unfolds from the opening conference to the closing conference, what the recurring findings actually are, how back wages and liquidated damages and penalties are computed, how to negotiate a resolution and what a supervised settlement does and does not release, and what a self-audit conducted before any of that should look like. It closes with the program that survives examination, the adjacent audits a wage finding can trigger, and the posture that determines how much a resolution actually costs.