Scott M. Nelson

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As of late, it seems we can hardly go a day without hearing about the rise of artificial intelligence (“AI”) and its potential to disrupt all manner of industries. But awareness of AI’s potential implications to our careers has only recently hit the mainstream. Many employees may be surprised to learn that a number of employers have already been using AI to make employment decisions for some time, especially in the hiring process. And the number of employers using AI in the workplace has been growing rapidly. Some employers are even using AI to make promotion decisions.
Continue Reading EEOC Issues Guidance on Use of AI in Employment Decisions

On May 2, 2022, the Supreme Court granted certiorari to Helix Energy Solutions Group Incorporated after Helix lost before the en banc United States Court of Appeals for the Fifth Circuit in a sharply-divided opinion last year.  In Hewitt v. Helix Energy Solutions Grp., Inc., 15 F.4th 289 (5th Cir. 2021), the Fifth Circuit held 12-6 that employers must guarantee their day-rate workers a minimum weekly payment that is reasonably related to the amount those workers actually earn in that timespan for their workers to be exempt from the FLSA’s overtime requirements.  This minimum weekly payment must be a predetermined amount that does not change based on the number of days or hours actually worked, if the employer wishes to enjoy the FLSA’s exemptions to paying its day-rate workers overtime.
Continue Reading Supreme Court Will Consider Helix Day Rate Pay Case

On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C. Circuit rejected the NLRB’s determination that the manager’s statements had a reasonable tendency to interfere with employees’ labor rights, reasoning that the manager’s misstatements were lawful expressions of the employer’s opinions.
Continue Reading D.C. Circuit Clarifies Boundaries of Protected Employer Expressions