ELIGIBILITY FOR WORKERS’ COMPENSATION DOES NOT TURN ON THE EMPLOYER’S FAULT

I was recently asked what happens if an employee is injured at work, and the employer is not at fault.  For example, an employee trips over a chair that is properly tucked into a table, and the employee is injured.  The employer was not at fault for the employee’s fall – after all, the chair was properly placed – and yet the employee could still be entitled to workers’ compensation. Why is that? pic Read More »

EMPLOYEE BENEFITS: THE IMPORTANCE OF THE OFFICIAL PLAN DOCUMENT

“Every employee benefit plan shall be established and maintained pursuant to a written instrument.”  That is the first sentence in ERISA’s fiduciary responsibility provision.  The ERISA-mandated “written instrument” – the official plan document – is a powerful document; it defines the employer’s contractual undertaking with respect to the plan’s participants.  In recent decisions, courts have distinguished between a writing that is enforceable as “the plan” and other plan-related instruments such as the summary plan description (“SPD”), an insurance policy, or an administrative services agreement (“ASA”).

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NLRB CHANGES SUCCESSOR LIABILITY

Long-standing labor law has set forth criterion as to when an employer is a statutory successor to a prior employer and what, if any, obligations are owed by such a successor to a union which represented the predecessor’s employees. Generally, the question of successorship status is determined by whether a majority of the subsequent employer’s workforce at a facility is composed of employees who were represented by the union while employed by the predecessor.  If they were, then the second employer must recognize and bargain with the union over the employees’ terms and conditions of employment. MergeAhead

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HOW SHOULD IME DOCTORS APPORTION FOR PRE-EXISTING IMPAIRMENT USING THE AMA GUIDES AND RULE 20 GUIDELINES?

In West Virginia, Workers’ Compensation statutes provide that an employee who has a definitely ascertainable impairment resulting from an occupational or non-occupational injury, disease, or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his employment, the prior injury and the effect of the prior injury and aggravation shall not be taken into consideration in fixing the amount of compensation or impairment allowed by reason of the subsequent injury.  The statute provides that compensation, i.e., a permanent partial disability impairment rating, shall be awarded only in the amount that would have been allowable had the employee not had the pre-existing impairmentRead More »

EEOC PLACES EMPLOYEE WELLNESS PROGRAMS UNDER SCRUTINY

Wellness programs are surging in popularity as employers seek to reduce steadily rising healthcare costs.  But could a well-intentioned wellness program end up costing you? With open enrollment for medical plans right around the corner for most employers, now is the time to ensure your wellness program complies with the Americans with Disabilities Act (ADA) and EEOC guidelines.  A pair of EEOC complaints filed in Wisconsin should put employers on alert that the agency is placing employee wellness programs under its microscope to determine if the programs potentially violate the Americans with Disabilities Act (“ADA”).  These two cases are the first the agency has ever filed over wellness programs.

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EMPLOYERS CAN LEARN LESSONS FROM SUCCESS AS MUCH AS THEY CAN FROM FAILURE

Recently, the Fourth Circuit Court of Appeals, in Hentosh v. Old Dominion University, affirmed an award of summary judgment dismissing a retaliation claim against Old Dominion University.  In so doing, the Court also declared that, in a case where a district court does not have jurisdiction over a Title VII claim due to Plaintiff’s failure to timely file a charge with the EEOC, Plaintiff’s error does not deprive the court of the ability to hear a related retaliation claim.   Read More »

THE NLRB’S DESIGNS TO RE-DEFINE JOINT EMPLOYER

Are you a franchisor?  Do you have contractors?  Do you use a staffing agency? Do you outsource functions (food service, cleaning, security, etc.)?  Do you have affiliate corporate entities you established to operate separately?  Do you have a vertically integrated operation? If you answered any single one of these questions affirmatively, the National Labor Relations Board is gunning for you. url

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SIXTH CIRCUIT VACATES ADA TELECOMMUTING DECISION

In April 2014, the Sixth Circuit, in EEOC v. Ford Motor Co., decided that telecommuting may be a reasonable accommodation under the ADA, even if the employer’s business judgment dictates otherwise. The court reversed a grant of summary judgment to Ford on the EEOC’s claim that Ford failed to accommodate an employee’s irritable bowel syndrome (“IBS”) by refusing to let her telecommute most days. However, in September 2014, the court agreed to reconsider that decision, vacating its April 2014 decision and restoring the case to the docket as a pending appeal.  Read More »

QUESTIONING AN EMPLOYEE’S FMLA LEAVE? REQUIRE CERTIFICATION.

Allowing employees to take FMLA leave is good for employees, it’s good for families, and, of course, it’s required by law. But what if you have an employee who takes FMLA leave when nothing seems to be wrong? For example, you could have an employee who reports that he is taking FMLA leave every time his request for a specific vacation day is turned down. Certainly, you don’t have to allow an employee to take the day off just because the employee has suddenly decided to say that it is FMLA leave, right? images Read More »