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.
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).
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.”
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.
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.