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 »

MICRO BARGAINING UNITS COMING TO A WORKPLACE NEAR YOU

It is no secret that many employers take steps to try and keep their workplaces union-free.  One of the newer concerns for employers in that camp is the possibility that employees could form a “micro bargaining unit,” which is a unit of employees that make up only a small portion of the workforce. images

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CLASS ARBITRATION – WHO DECIDES?

Employers tend to like certain aspects of arbitration.  Often it provides a faster and more economical resolution to a dispute than litigation.  Parties can represent themselves, without the need for counsel, before an impartial decision maker chosen by them.  Most arbitrators have some level of experience or expertise in the subject matter of the controversy they will be deciding.  Courts and juries generally will have no such experience.  Employers also believe that an arbitrator’s economic self interest, the desire to be selected for future cases, will prevent an arbitrator from entering a “runaway jury” size adverse award significantly beyond the actual, documented losses and, where appropriate, prevailing party attorney fees. Read More »

PA FEDERAL COURTS ANALYZE PHRA DISABILITY CLAIMS UNDER PRE-ADAAA STANDARDS

The United States District Court for the Eastern District of Pennsylvania ruled in Riley v. St. Mary’s Medical Center that, while the ADA Amendments Act of 2008 (“ADAAA”) altered the federal standard for proving a disability under the Americans with Disabilities Act and as the Pennsylvania legislature has not enacted a similar amendment to the Pennsylvania Human Relations Act (“PHRA”), the higher, pre-ADAAA standard for proving “disability” will apply to a plaintiff’s PHRA disability claim. pic

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