I MAY BE OLD, BUT I’M STILL “SUBSTANTIALLY YOUNGER” THAN YOU

The West Virginia Supreme Court of Appeals recently reversed itself and adopted the “substantially younger” rule in cases of age discrimination under the West Virginia Human Rights Act (“WVHRA”).  Previously, in order to prove age discrimination, an employee in the protected class—40 years old or older—had to show that he or she was replaced by or treated differently than a similarly-situated employee outside of the protected class—under 40 years old.  This was the “over 40/under 40” rule.  Now, an employee may prove age discrimination by showing evidence of a comparator employee who is substantially younger than the plaintiff, even if that comparator employee is also over 40 years old. Read More »

OSHA UPDATE

I had the opportunity to hear Dr. David Michaels, Ph.D., the Assistant Secretary of Labor for OSHA, speak on March 10, 2016, about the state of Occupational Safety & Health in the United States.  It was not just a “normal” speech, as it was his last in that position before the American Bar Association Labor & Employment Law Section Committee on Occupational Safety & Health.  In attendance were lawyers devoted to representing employers like me, lawyers from unions, lawyers from the Solicitor’s Offices around the Country who represent OSHA, OSHA officials from Washington, D.C., Commissioners from the independent Occupational Safety & Health Review Commission (OSHRC), and the Chief Judge of OSHRC, and various Company and Industry representatives, including the U.S. Chamber of Commerce, and various employee rights groups.  Our assemblage is unique in that it contains all constituencies in the OSHA world.  Read More »

ADA: ARE YOU PARTICIPATING IN THE INTERACTIVE PROCESS IN “GOOD FAITH”?

The Americans with Disabilities Act (“ADA”) provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . .” 42 U.S.C. § 12112(b)(5)(A). Read More »

UBERIZATION OF SAFETY: IS IT REALLY THAT BAD???

This blog post is the final part of a six part series on the impact the Uber business model is having on employment laws across the nation.

District Attorneys for Los Angeles and San Francisco recently amended their complaint in another existing lawsuit against Uber – this one about consumer protection.  You’ve probably seen the headlines, screaming about drivers with histories of murder, assault, child abuse, and countless other criminal horrors.  One issue in the suit concerns the background checks conducted by Uber and other representations regarding safety it has made on its website.  One of the District Attorneys contends that Uber has misled consumers by performing background checks that do not go far enough.  The initial lawsuit was filed in December, 2014, and since that time, Uber has scaled back the statements on its website and has continued to make improvements geared toward safety for both its riders and its drivers.  Is Uber really as unsafe as the headlines and district attorneys would have you believe?  In my View, the answer is a resounding “No.”   Read More »

FOURTH CIRCUIT OK’S THE FBI’S GENDER-BASED PHYSICAL FITNESS STANDARDS UNDER TITLE VII

Since 2004, the Federal Bureau of Investigation (“FBI”) has required its special agent recruits to pass a physical fitness test (“PFT”), both before admission to and graduation from its academy in Quantico, Virginia.  The PFT consists of four-parts: (1) one-minute of sit-ups, (2) a 300-meter sprint, (3) push-ups to exhaustion, and (4) a 1.5-mile run.  Each part is subject to a gender-based standard.  Under the push-up portion of the PFT, for example, men must do thirty push-ups to pass, while women need only do fourteen.rlee

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READ ALL ABOUT IT: EEOC EMPLOYER POSITION STATEMENTS NOW AVAILABLE TO CHARGING PARTIES

Up until recently, the federal Equal Employment Opportunity Commission (“EEOC”) protected from disclosure information collected during the course of an investigation while that investigation was still pending.  As of January 1, 2016, that is no longer the case – at least for information submitted by an employer.  For all employer position statements submitted to the EEOC on or after that date, the EEOC has implemented new procedures which will provide, upon request, the employer’s position statement to the employee (or former employee) bringing a claim of discrimination. Previously, the position statement was not available to the charging party until after the EEOC’s investigation was completed.  Read More »

THE UBERIZATION OF ARBITRATION CLAUSES: ARE THEY WORTH THE PRICE OF THE PAPER THEY’RE PRINTED ON?

This blog post is part five of a six part series on the impact the Uber business model is having on employment laws across the nation.

Arbitration has long been treated as an inferior method of resolving disputes, despite pronouncements to the contrary from the U.S. Supreme Court.  However, arbitration does serve a purpose.  The process is less formalized, so it moves much faster than the court system.  That means less disruption to business.  It’s also less expensive than bringing a civil action, making it easier for individuals to assert their rights or air their grievances.  For these reasons and more, many businesses have incorporated arbitration provisions into their contracts and handbooks.  The Federal Arbitration Act was enacted in 1925, yet these types of contractual agreements to arbitrate still get shot down in certain courts and by certain administrative authorities. Read More »

PAYROLL DEBIT CARDS COULD BE COSTLY TO EMPLOYERS

How do you pay your employees?  Although payroll debit cards can be attractive to employers and employees, employers should proceed with caution when utilizing them.  Employers cannot require their employees to receive wages on a payroll card; other alternatives, such as paper checks and direct deposit, must also be offered, and these requirements vary from state to state.-1x-1 Read More »

EMPLOYEE BENEFITS: WHAT IS THE OFFICIAL PLAN DOCUMENT?

We have previously discussed The Importance of the Official Plan Document including the uncertainty of whether one document could perform double duty as “the Plan document” and the summary plan description (“SPD”). While it is still “not a sure bet” as to how the U.S. Supreme Court would rule, a recent ruling has held that the SPD can, in fact, be the governing plan document. Read More »

UBERIZATION OF THE WORKPLACE, PART 4: UBERIZATION OF EMPLOYER/EMPLOYEE/INDEPENDENT CONTRACTOR RELATIONSHIPS – IT’S NOT ALL SUNSHINE IN CALIFORNIA

This blog post is part four of a six part series on the impact the Uber business model is having on employment laws across the nation.

All eyes and ears have been turned toward the courtroom of the Honorable Edward M. Chen, sitting the in the United States District Court for the Northern District of California, where Uber has been mired in litigation.  Some Uber drivers, claiming to be employees rather than independent contractors, have been attempting to institute a class action on behalf of some 160,000 California Uber drivers.  A subset of these drivers was granted class action status on September 1, 2015, with thousands more added a few months later in December.  Read More »