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E-Cigarettes and Workplace Smoking Policies: To Ban or Not to Ban, that is the Question
Smoking 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 >
What Employers under Collective Bargaining Agreements Should Know about the Decision in M&G Polymers v. Tackett
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.
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Must Gluten-free Be Free? What You Should Know About Celiac Disease and the ADA
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 >
The Law of Mandatory Flu Shot Requirements
The issue of whether United States citizens could be compelled to submit to vaccinations has been the subject of litigation since small pox was an epidemic threatening the health and well-being of the country in the early 1900s. In Jacobson v. Massachusetts, citizens challenged a Massachusetts state law requiring all persons over the age of 21 to be vaccinated against small pox. 197 U.S. 11 (1905). They argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” Id. at 26. The United States Supreme Court disagreed, finding “a real and substantial relation to the protection of the public health and safety” and noting that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 31, 25. The Court did note, however, that this power should not be exercised in such a manner as to be arbitrary or beyond what is necessary for the safety of the public. Id. at 26. More >
Nuns, Firefighters and Title VII: Are Volunteers Eligible for Protection?
Volunteerism is a staple of American life. According to the Corporation for National and Community Service, 62.6 million Americans volunteered nearly 7.7 million hours in 2013, adding up to an estimated value of $173 billion. Organizations such as the Salvation Army, the Red Cross, and Habitat for Humanity depend on volunteers to serve the communities in which they live. But even beyond not-for-profit charitable organizations, for-profit businesses routinely open their doors to students and others who are willing to file, prepare mailings, or shred documents in exchange for some experience to put on their resume. More >
Employment at Will Comes with Many Exceptions
Kentucky employment law generally recognizes that most employment is “at-will” – meaning, employees serve at the pleasure of the employer, and termination of an employee does not require “just cause.” There are several circumstances, however, where laws and other factors prohibit employers from terminating an employee without a well-documented showing of cause. Employers should be aware of the circumstances under which they may not terminate an employee without just cause. More >
Making Sure Your FMLA Policy Covers the Basics
Too often, employers assume that their policies comply with the basic tenets of regulatory provisions and proceed to other details without regular, careful review. This complacency, however, is where mistakes multiply, which can result in costly outcomes. In the case of Tilley v. Kalamazoo County Road Commission, for instance, the court reiterated that failure to review basic FMLA rules and train employees accordingly could lead to an unwelcome result. More >
Employees vs. Independent Contractors: The Consequences of Misclassification
The distinction between independent contractors and employees carries more burdens, consequences, and decisions than ever before. In addition to the tax consequences, there are health care compliance consequences, workers’ compensation consequences, and even intellectual property consequences. Understanding the consequences of misclassification is paramount to properly structure an employer’s workforce. More >
This Party is BYOD, Part Two
The discussion in the last post focused on reasons for allowing BYOD in the work place and some traps to watch out for, which continues below. More >
This Party is BYOD, Part One
The word you’re looking for is “ubiquity.” It describes the near-total assimilation of technology into every aspect of our lives. The words “cell phone” are falling by the wayside as the words “smart phone” take their place, and soon enough the word “phone” might be dropped altogether as a relic of a time when people used them primarily (and ever so quaintly) for actually talking to each other. These relatively recent smart devices are upending the traditional separations between work and home, with uncertain results. For some employers, “bring your own device” (“BYOD”) is considered a boon, allowing employees to stay connected to the workplace at all times through the comfort and convenience of their personal devices. For others, BYOD could be a nightmare, with IT advisory company Gartner calling it, cheekily, “a disruptive phenomenon where employees bring non-company IT into the organization and demand to be connected to everything – without proper accountability or oversight.”[1] Chances are good that the true answer might be a little bit of both as lines continue to blur across the wirelessly-connected workforce. Gartner estimates that as many as 90% of workplaces will have some aspect of BYOD in place by 2017. We’ll explore the reasoning behind BYOD and the pitfalls that can accompany it before delving into what makes for a strong BYOD policy. More >
