Author Archives: Lindsay M. Bouffard

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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U.S. SUPREME COURT INVALIDATES OBAMA’S NLRB RECESS APPOINTMENTS

On Thursday, June 26, 2014, the U.S. Supreme Court issued its long-awaited ruling in NLRB v. Noel Canning, a case where a soda bottler and distributor challenged an NLRB enforcement Order and claimed that the Board did not have a requisite quorum of members to issue the Order because three of its members, at the time,  had been unconstitutionally appointed.  After the District of Columbia Circuit Court sided with Noel Canning, the Supreme Court affirmed, and ruled on the Board’s appeal that the three recess appointments President Obama made to the NLRB in January 2012 were indeed unconstitutional. 042313_nlrb_600

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SIXTH CIRCUIT HOLDS THAT TELECOMMUTING MAY BE A REASONABLE ACCOMMODATION UNDER THE ADA

Last year in this forum, we wrote about how a federal court in the Eastern District of Michigan concluded that working from home was not a reasonable accommodation for a Ford employee who had irritable bowel syndrome.  Specifically, that court determined that telecommuting was not a reasonable accommodation under the Americans with Disabilities Act for the employee because attendance at work was an essential function of her job.  Well, that case was appealed, and in a recent ruling employers everywhere should know about, the Sixth Circuit Court of Appeals gave employers a lot of food for thought about whether telecommuting can be a reasonable accommodation, what essential job functions truly are, and whether the workplace must be at the employer’s physical place of business.
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A QUICK REFRESHER ON JOINT EMPLOYER LIABILITY

Joint employment is not a concept that every employer is familiar with, probably because it most commonly arises in the contractor setting.  Generally speaking, when joint employment is found, it serves to impute liability on a general contractor for the actions of an employee of a subcontractor, based on the idea that the general contractor has sufficient control over the work done by the subcontractor employees.  As you can probably tell, the definition alone suggests there’s a lot of gray area, so it’s not always clear who qualifies as a joint employer.  A recent case decided by the Sixth Circuit Court of Appeals – which covers Ohio, Kentucky, Tennessee, and Michigan – is a good refresher on this issue, particularly since it arose in the context of who may be liable for discrimination under Title VII of the Civil Rights Act of 1964.

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TIPS TO AVOID LIABILITY AT THE HO-HO-HOLIDAY PARTY

With the holidays fast approaching, employers and employees alike are beginning to look forward to company holiday parties.  However, it’s no secret that these parties can be a double-edged sword for employers.  They are a great way to boost employee morale, but poor planning can expose employers to sexual harassment complaints and social host liability lawsuits.  Whether your party is a casual lunch in the office or a cocktail party at a favorite local venue, thoughtful planning will help ensure a safe, enjoyable, and hopefully liability-free event.  Here are a few easy ways to reduce the risk for your organization: 

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CAN A STATE REALLY HAVE A LEGALLY ENFORCEABLE PUBLIC POLICY REQUIRING REASONABLE RESTROOM USE?

Often, Plaintiffs who lose their jobs and decide to pursue legal action take the position that their discharge violated some public policy in their state.  Occasionally, these claims can get quite creative. 

Recently, a production technician at an employer in Ohio brought a wrongful termination claim in state court there alleging his employer violated Ohio’s public policy on restroom use.  Specifically, the Plaintiff claimed his termination violated the public policy requiring employers to allow employees to use the restroom subject to reasonable restrictions. While this position seems sympathetic, a closer examination of the allegations in the case reveals that his lawsuit was probably doomed from the start. 

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EEOC SETTLES ITS FIRST LAWSUIT ALLEGING GENETIC DISCRIMINATION

Employers who have yet to put the Genetic Information Non-Discrimination Act (“GINA”) on their radar should probably re-consider their priorities.  The Equal Employment Opportunity Commission (“EEOC”) is already at the point where the agency isn’t just bringing suits to enforce violations of that law, it is now settling them. 

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INSKEEP V. WESTERN RESERVE TRANSIT AUTHORITY: OHIO CIVIL RIGHTS ACT DOES NOT EXTEND TO SEXUAL ORIENTATION

In Inskeep v. Western Reserve Transit Authority, Matthew Inskeep, an employee at Western Reserve Transit Authority (WRTA), brought a claim against his employer for sexual orientation harassment and negligent infliction of emotional distress.  The trial court dismissed the employee’s claim finding that sexual orientation is not covered by the Ohio Civil Rights Act and negligent infliction of emotional distress is not a separate tort recognized in Ohio in the employment context. Inskeep appealed. 

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