Employers often face the issue of whether or not they can discipline an employee who is already on some kind of medical leave. Despite how common that situation may be, many employers think they are unable to take action in that situation. While the exact answer is always going to be resolved on a case-by-case basis, employers aren’t always as hamstrung as they may feel.
The recent unveiling of the new 5S and 5C iPhone models isn’t the only way Apple has been making headlines lately. Recently, two former Apple store employees filed a class action lawsuit against the tech giant, alleging violations of the Fair Labor Standards Act (FLSA) and seeking millions of dollars for unpaid wages and overtime compensation. The most interesting part of the suit is that it isn’t based on a typical FLSA violation, such as the failure to properly compensate employees for their breaks.
While any medical testing for employees or job candidates may invite scrutiny under the Americans with Disabilities Act (“ADA”), many employers don’t always view drug and alcohol screening the same way as they do a typical medical test. While overlooking that connection could be a mistake, not all the skies in this area are gray, as a recent decision from a federal district judge in Pennsylvania illustrates.
When employers are hauled into Court and sued for discrimination after already defending a charge for the same conduct in front of the EEOC or state human rights agency, they usually have a pretty good idea what they are defending. Sometimes employees try to play hide-the-ball with their allegations, however, and that makes those suits harder to defend. Fortunately for employers, at least one Court has taken a stand against that kind of subterfuge.
On October 4, 2012, the United States Court of Appeals for the Fourth Circuit – based in Richmond, Virginia – held oral arguments on the road at the West Virginia University College of Law in Morgantown, WV. While doing so, the Court heard, and later decided, a noteworthy Americans With Disabilities Act case, Reynolds v. American National Red Cross National Headquarters, et al.
Within the last year or so, the National Labor Relations Board (NLRB) has taken a very active role in scrutinizing employer social media policies to make sure they aren’t reasonably construed to restrict employee concerted activity. Starting several months ago, they expanded that scrutiny to examine at-will disclaimers and other employer policies for the same purpose. Now, the Board has taken things to an even further level.
Recently, the Fourth Circuit Court of Appeals – which covers West Virginia – issued an important discrimination opinion that all employers in the region need to be aware of.
In Gerner v. County of Chesterfield, Civ. Action No. 11-1218 (4th Cir. Mar. 16, 2012), the Fourth Circuit Court reinstated the lawsuit of a woman who alleged that her former employer unlawfully discriminated against her by offering her a less favorable severance package than it offered to male employees holding similar positions. In doing so, the Court held that Title VII protects both current and former employees from discriminatory adverse employment actions – including the offering of severance benefits, regardless of whether such benefits are furnished under a contractual obligation or offered only voluntarily.
Recently, the Fourth Circuit Court of Appeals addressed the question of whether, under Pre-ADAAA jurisprudence, an employee is not substantially limited in the major life activity of working if he or she can work a 40-hour workweek, but is not able to work overtime because of a physical or mental impairment.
Most employers are probably well-aware that the Americans with Disabilities Act (“ADA”) prohibits discrimination against qualified applicants and employees on the basis of disability. In Stansberry v. Air Wisconsin Airlines Corporation, the U.S. Court of Appeals for the Sixth Circuit – the jurisdiction in which Ohio and Kentucky sit – recently addressed for the first time a much less frequently litigated provision of the ADA which prohibits “association discrimination,” i.e., discrimination against an applicant or employee on the basis of his or her relationship or association with a disabled individual.