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Sexual Harassment Mistakes Employers Make

By Cynthia L. Effinger on April 9, 2015
Posted In EEOC, Employee Misconduct, Title VII of the 1964 Civil Rights Act

Sexual harassment claims can quickly become a nightmare for employers, but so many aspects of the nightmare are caused in part by the employer’s own actions. The employer has opportunities to mitigate the damage in two key areas – the sexual harassment policy itself before the alleged harassment incident and the investigation that takes place afterword. This post will look at mistakes made in these two particular areas that can hurt employers and lead to potentially costly damages. More >

Is it Time to Review Your Employee Handbooks?

By Cynthia L. Effinger on April 8, 2015
Posted In Employee Handbook, National Labor Relations Act (NLRA), National Labor Relations Board (NLRB)

On March 18th, National Labor Relations Board (“NLRB”) General Counsel Richard F. Griffin, Jr., issued a report[1] (“the Report”) concerning employer rules and employee handbooks in light of recent employer rule cases. Most of the violations found in these cases occurred under the first prong of the two-prong the test in Lutheran Heritage Village-Livonia,[2] which looks to whether an employer rule explicitly restricts protected activity under Section 7 of the National Labor Relations Act (“NLRA”). The Report used these cases as a guide to provide clear examples of both illegal rules and their legal counterparts, giving employers a valuable tool in evaluating employee handbooks and workplace rules.Employee Handbook Manual Rules Regulations Code of Worker Conduc More >

Employers – Don’t Be a Victim of Suspicious Timing

April 1, 2015
Posted In EEOC, Title VII of the 1964 Civil Rights Act

Where there’s smoke, there may be fire – at least, that appears to be a key takeaway from the Seventh Circuit case of Ledbetter v. Good Samaritan Ministries. The holding in this case is predicated on the notion that suspicious timing in an adverse employment action can give rise to a claim of retaliation under Title VII in absence of other solid evidence. More >

Anxiety over Reasonable Accommodation under the ADA for Social Anxiety Disorder

March 30, 2015
Posted In ADA Amendments Act of 2008 (“ADAAA”), Adverse Employment Action, Americans with Disabilities Act

Employers might be just a bit more anxious after learning that the Equal Employment Opportunities Commission (“EEOC”) defined the “ability to interact with others” as a major life activity, bringing social anxiety disorder into the scope of protection afforded by the Americans with Disabilities Act (“ADA”). The Fourth Circuit, in the case of Jacobs v. N.C. Administrative Office of the Courts,[1] recently agreed with the EEOC that social anxiety disorder may be a disability for ADA purposes. For practical purposes, however, the important takeaway in this case is that reasonable accommodation requests should never be taken lightly and all decisions that adversely affect employees should come with ample documentation. More >

What You Didn’t Say Can Be Used Against You in a Court of Law: Perceived Speech is Not Protected Speech

March 25, 2015

What some might charitably consider a loophole in First Amendment protections of public employees received deferential treatment recently by the Third Circuit. In what seems like an upside-down scenario, the Third Circuit upheld the ability of a public employer to fire an employee for speech that he or she did not actually speak, while that employee likely would have had a claim against his or her employer had he or she actually engaged in the speech that didn’t take place. This confusing result is not the first of its kind, either, and public employees are now on uncertain ground as to whether what they don’t say can be used against them.Vertical Image Of The The First Page Of The Us Bill Or Rights On More >

What Employers Should Know about the FMLA and Same-Sex Marriages under New Department of Labor Rules

March 23, 2015
Posted In Civil Rights, Department of Labor ("DOL"), Family and Medical Leave Act (“FMLA”)

After the 2013 Supreme Court decision in United States v. Windsor, federal agencies have been moving to align federal policies and procedures with the holding of that case. The Court held, basically, that same-sex marriages performed in states where those marriages are legal are valid, legal marriages for purposes of federal law. To that end, the Department of Labor (“DOL”) promulgated a final rule on February 25th, 2015 that revised the regulatory definition of the word “spouse” to include same-sex spouses from legal marriages to eligible employees for purposes of the Family and Medical Leave Act (“FMLA”). The final rule becomes effective on March 27th, 2015. More >

E-Cigarettes and Workplace Smoking Policies: To Ban or Not to Ban, that is the Question

By Luke A. Wingfield on March 18, 2015
Posted In Adverse Employment Action, Americans with Disabilities Act, Employment Law

Woman Smoking With Electronic CigaretteSmoking in the workplace is slowly becoming an antiquated notion. Federal and state laws ban smoking in some places, and an increasing patchwork of local ordinances decreases the availability of indoor and even outdoor smoking in some circumstances. Complicating matters, as it usually does, is the rise of new technology that straddles the line between permissible and impermissible conduct – the e-cigarette. The question employers now have to struggle with is whether these devices, which purport to alleviate the harmful effects of smoke on both the user and those inhaling second-hand, should fall under broad workplace bans on smoking. More >

Is a Company’s Release of Claims a Form of Retaliation under Federal Anti-Discrimination Laws? EEOC v. Allstate

By Luke A. Wingfield on March 17, 2015
Posted In Uncategorized

The EEOC may have taken enforcement of anti-retaliation provisions of antidiscrimination laws a step too far the Third Circuit ruled in February, and companies transitioning a work force from employees to independent contractors should be pleased at the results. EEOC v. Allstate drew a line between what now counts as retaliation by a company in the face of federal antidiscrimination laws and what is merely a post-termination transaction between an employer and an employee. More >

What Employers under Collective Bargaining Agreements Should Know about the Decision in M&G Polymers v. Tackett

March 11, 2015

Recently, the United States Supreme Court undertook a significant course-correction in the vesting of retiree health benefits under collective bargaining agreements (“CBAs”). In January of this year, the Supreme Court decided M&G Polymers USA, LLC v. Tackett, and unanimously struck down three-decades-old precedent from the Sixth Circuit. Known as the “Yard-Man inference” from the case that first created the rule, UAW v. Yard-Man, Inc., the Sixth Circuit established an inference that retirement health care benefits were intended to vest for life, unless there was clear language to the contrary in the CBA. In a clear win for employers, the Supreme Court determined that such a presumption was in clear contradiction to basic principles of contract law.Closeup of Management and Labor handshake in front of building a More >

Must Gluten-free Be Free? What You Should Know About Celiac Disease and the ADA

March 9, 2015
Posted In Americans with Disabilities Act

Restaurants nationwide are beginning to offer gluten-free alternatives to regular menu items. This is welcome news to those long suffering from celiac disease, a chronic and serious immune reaction to eating gluten, a protein that is found in wheat, barley and rye. The National Foundation for Celiac Awareness cites a statistic that one out of every 133 Americans has celiac disease. While that number seems small, that means that a busy restaurant will likely encounter at least one customer with celiac disease every few days at the least, and quite often daily. Many restaurants that do provide gluten-free options, however, charge an added fee for the dish. This raises a few important topics of note for those with celiac disease - whether celiac disease is a “disability” that requires accommodation under the American with Disabilities Act (“ADA”), whether a restaurant must provide a gluten-free dish as an accommodation, and finally, whether it may charge an added fee for the accommodation. More >

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