HAPPY EASTER FROM THE EMPLOYMENT ESSENTIALS TEAM

Employers frequently deal with issues touching on employee privacy rights, and in the world of smartphones, social media, Google Glass, and B.Y.O.D., the application of relevant laws in this area is getting more – not less — complex.  Want a primer on all workplace-related privacy issues this Easter? Look in the right margin or click here to download our free Workplace Privacy Toolkit as a gift to you from the Employment Essentials Team this holiday season.  Grab it and put it in your basket today because – like the Easter Bunny – it may disappear soon.  If you like the Toolkit, don’t forget to spread the word, and tell us in the comments below, as well!

DON’T WITHHOLD FINAL PAY IF YOUR EMPLOYEE LEAVES WITH YOUR PROPERTY

Employers are often understandably flummoxed about what to do when an employee’s employment ends while the employee still has custody of the employer’s property. For example, an employee may wear his or her employer-provided uniform home at the end of the employee’s final shift. What’s the employer to do?

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THERE IS A DEFENSE TO FMLA CLAIMS. HONEST.

Imagine this scenario:  One of your employees is taking leave under the FMLA. You suspect the employee has misrepresented the state of his or her condition to fraudulently obtain protection under the FMLA and is really using the time off for personal reasons unrelated to any illness or injury. In fact, several of the employee’s co-workers have reported to you that they have observed the employee out shopping on days when he or she had supposedly used FMLA-protected leave. They’ve also told you that some of the employee’s Facebook posts and photos portray activity which seems inconsistent with their alleged illness or injury.  Since the FMLA prohibits employers from interfering with an employee’s FMLA rights and from retaliating against employees who exercise their rights to leave, there’s nothing you can do unless you care to find yourself in court, right? 

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AMBUSHED? THE NLRB IS IN THE NEWS – AGAIN

Now that the National Labor Relations Board is at full staff – three Democrats and two Republicans – it has begun to act in earnest.  In addition to starting to issue a litany of pro-union decisions, the NLRB “re-issued” its proposed new union election rules on February 6, 2014 for notice and comment.  These rules were previously issued for the same purpose back on June 22, 2011, but after the Board adopted a portion of them in December of that year, the modified rules were struck down by federal courts on procedural grounds. 

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ACCOMMODATIONS FOR PREGNANT EMPLOYEES: WHEN LABORING MEANS MORE THAN JUST HARD WORK

Most employers probably know that they cannot discriminate against employees on account of pregnancy or childbirth.  The right of a pregnant employee to be free of discrimination arises from the federal Pregnancy Discrimination Act (PDA), which makes such treatment a form of gender discrimination under Title VII of the Civil Rights Act of 1964.  Other employment laws, including the Family Medical Leave Act (FMLA) and various state laws, may also come into play when dealing with an employee’s pregnancy. 

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GINA STRIKES AGAIN

A few months ago, we told you about the EEOC’s first lawsuit alleging a violation of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). A week after settling that case, which was brought on behalf of an individual, the EEOC filed another complaint.  In this new action, the EEOC alleged for the first time a systemic, or class-wide, violation of GINA.  In January, the EEOC and the employer entered into a consent decree, where the employer admitted no wrongdoing, but agreed to pay a total of $110,400 to a group of 138 employees who it hired during the time it used a medical form that asked for family medical histories. 

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DON’T START THE ADA INTERACTIVE PROCESS UNLESS YOU’RE GOING TO FINISH IT!

In Spurling v. C&M Fine Pack, Inc, 2014 U.S. App. LEXIS 660, the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) reversed, in part, a district court’s entry of summary judgment in favor of an employer in a FMLA discrimination and ADA failure to accommodate suit. 

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DID THE FLSA’S DE MINIMUS RULE SURVIVE SANDIFER v. UNITED STATES STEEL CORP.?

Recently the Supreme Court addressed the ability of a union contract, custom, or practice to dictate when the putting on or taking off of personal protective equipment constitutes “changing clothes” and thus constitutes non-compensable time.  In Sandifer, the Court held that when the vast majority of such preliminary or postliminary time is consumed in donning-and-doffing of what clearly are clothes, then the entire period, including the time related to personal protective equipment which is not clothing, falls under the collective bargaining agreement’s exception to compensable work time.  The Court acknowledged that some personal protection equipment does not meet the definition of clothes, yet the amount of time spent in donning or doffing these items may be so small and difficult to track that such time need not be counted for purposes of computing compensable work time.  

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FOURTH CIRCUIT CONSIDERS IMMUNITY ISSUES IN DISCRIMINATION SUIT

Recently, in the matter of McCray v. Maryland Dept. of Transportation, the Fourth Circuit had the opportunity to consider whether sovereign immunity or legislative immunity applied to a discrimination case filed by an employee of the Maryland Department of Transportation.  Plaintiff, Ms. McCray, filed a discrimination suit pursuant to the ADEA, ADA, and Title VII in which she alleged she was fired from her job as a transit worker for discriminatory reasons.  Ms. McCray’s position was eliminated by the Legislature with 802 other positions due to necessary budget cuts. 

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WV SUPREME COURT AFFIRMS WORKERS COMPENSATION DISCRIMINATION VERDICT AGAINST EMPLOYER

In JWCF, LP v. Farruggia, the West Virginia Supreme Court affirmed the Kanawha County Circuit Court’s refusal to grant a new trial after a jury awarded a former employee more than $250,000 in back pay, front pay, and damages arising out of a Workers’ Compensation discrimination claim.

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