The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) is unique among employment laws, in part due to the affirmative obligations it puts on the employer. For example, when an employee returns to work after having taken more than 90 days of leave under USERRA, it is not enough that the employer gives the employee his or her old job back. Instead, the employer must place the employee in the position he or she likely would have had but for the military service. So, suppose an employer typically advances employees based upon length of employment. And during the one year an employee was serving in the military, the employee would have advanced to another position. Under USERRA, when the employee returns, he is not to be put back in his old position, but in the position he would have held had his employment not been interrupted by military service. This is known as the “escalator” position.
I was recently asked if an employer has to assign a qualified employee with a disability to a vacant position as part of the employer’s duty to reasonably accommodate the disability. The employer believed that, if he had a vacant position and the disabled employee was qualified for it, he had to give the job to that employee. While reassignment to a vacant position may be a reasonable accommodation under the ADA, there is no requirement that you must reassign the employee. Let’s see if we can clear up this misconception.
With all the recent media coverage of Bruce Jenner’s transition to Caitlyn Jenner, employers should be aware that the issue of transgender employees in the workplace is becoming more and more common. Regardless of one’s view on the subject, employers need to realize that they can find themselves in hot water by improperly dealing with a transgender employee. A recent case filed by the EEOC illustrates this problem.
As we’ve reported in this blog before, the National Labor Relations Board adopted a final rule on December 15, 2014, which will likely reduce the time between the filing of a union election petition and the representation election—the “ambush election rule.” The new rule goes into effect today, April 14, 2015. The new rule will apply to all representation petitions filed on or after the effective date. Representation cases filed before today will continue to use the old rules.
The Supreme Court of the United States recently vacated a decision that made an employer responsible for the lifetime costs of its retirees’ health benefits, despite there being no language in the labor agreement with the union stating that the employer had this responsibility. The Court sent the case back to the appellate court to determine whether the parties intended for the employer to pay for all of the retiree health care costs in perpetuity.
I recently had a client ask if the Fair Labor Standards Act (FLSA) required him to reimburse employees for mileage for using their own vehicles to drive to and from mandatory training. Although many employers reimburse their employees for the employees’ use of their personal vehicles for work-related travel, you are not required to do so under the FLSA. The FLSA requires employers to pay their employees a minimum wage, but it does not address reimbursement of expenses.
An employee who has 20/20 vision asks to bring a service animal—a “seeing eye dog”—into work. Must you permit the employee to do so? You might feel that this is the sort of question for which you don’t need to consult with an attorney. The answer is obviously, “No,” right? What if the employee also trains service animals on the side? Must you allow the employee to bring the animal in to work? The answer might surprise you.
In an important win for employers seeking to resolve disputes with former employees outside of the circuit courts, the West Virginia Supreme Court of Appeals recently upheld a circuit court decision that compelled a former employee to submit his wrongful termination dispute to alternative dispute resolution (“ADR”) rather than pursue the claim in court. Although the West Virginia Supreme Court often finds ADR agreements to be unenforceable, it’s important to note why they found this one was acceptable.
The Sixth Circuit Court of Appeals — encompassing Michigan, Ohio, Kentucky, and Tennessee — recently affirmed a trial court’s dismissal of a lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”), which alleged that an employer’s use of credit checks to screen potential employees for certain positions unfairly discriminated against African-Americans. This was a major victory for employers, who, as we discussed in a previous blog, are in a “damned if you do, damned if you don’t” situation when it comes to background checks.
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.