Employment Law Articles

The National Labor Relations Board recently proposed a rule that would require employers to post a notice in the workplace informing employees of their right to form a union.

The rule hasn’t been adopted yet, but if it is, employers who fail to comply could be fined or sued for unfair labor practices.

Such a notice could conceivably have an effect in smaller workplaces – such as those with 10 or 15 workers – where a union could form quickly if a majority of employees agree to organize.

An employer can have a “one-strike” drug-testing policy that permanently disqualifies applicants who have previously flunked a drug test, according to a federal appeals court in California.

In this case, an employer rejected an applicant for a longshoreman job when he failed a pre-employment drug screening.

Some time afterward, the man allegedly stopped using drugs, but when he reapplied, the employer rejected him again under its one-strike rule.

He sued, claiming that the one-strike policy violated the Americans with Disabilities Act. That law prohibits employers from discriminating against rehabilitated drug users. [Read more...]

A woman who had recently had a baby and who was denied a job as a security guard after failing a physical-fitness test could sue the company for pregnancy discrimination, a federal judge in Alabama recently ruled.

The test required job applicants to perform 29 sit-ups in two minutes.

The woman claimed she was unable to complete enough sit-ups because her stomach muscles were weak from childbirth several months earlier. She sued the employer under the federal Pregnancy Discrimination Act. [Read more...]

A city didn’t violate its employees’ right to medical confidentiality by making them provide a doctor’s note when coming back from sick leave, a federal appeals court ruled recently.

The city of Columbus, Ohio had adopted a policy demanding that police department employees who took sick leave give supervisors a physician’s note stating the “nature of the illness” and whether the worker could return to regular duty.

Several employees sued, arguing that the policy violated patient confidentiality rules under the Americans with Disabilities Act. [Read more...]

A company can be sued if it “pressures” an employee who is on medical leave by repeatedly calling to find out when the employee plans to return to work.

That’s the message of a new case from a federal court in Arkansas.

In that case, a woman took leave from her housekeeping job at a hospital to recover from back surgery. She claimed that while she was out, her immediate supervisor called her every week to ask when she was coming back. In one conversation, she asked if her job was in jeopardy, and the supervisor responded by telling her that she should return as soon as she could. [Read more...]

Many states have passed laws in recent years allowing people to use marijuana for medical reasons.

But while these laws may protect users against the police, they won’t necessarily protect them against their employers.

For example, a Wal-Mart employee in Michigan recently sued the company for firing him under its drug-use policy when he tested positive for marijuana. The employee claimed he was wrongfully fired because he used marijuana after work for medical reasons. [Read more...]

In an old French fable, a sneaky monkey talks an unwary cat into grabbing roasting chestnuts from a fire. The cat burns its paw and drops the chestnuts, and the monkey walks off with them.

From this fable comes the phrase “cat’s paw,” meaning an innocent person who’s used as a tool for someone else’s dirty work.

In the employment world, a “cat’s paw” situation is one where a supervisor is prejudiced against a worker, but rather than firing the worker for an illegal reason, he or she persuades a higher-up manager to fire the worker for some trumped-up but legitimate-sounding reason. [Read more...]

Once again, the U.S. Supreme Court has made it easier for workers to go to court and claim that they were fired in retaliation for asserting their rights.

In recent years, the Court has decided a number of cases that made it easier for workers to sue if they were fired for complaining about discrimination.

But what if a worker was fired for complaining about something else? What if a worker was fired (or otherwise punished) after making a comment about the way the employer allocates tips? Or about unsafe equipment? Or overtime practices? [Read more...]

Workers who are using a company-owned vehicle might be considered “at work” – and thus covered by workers’ comp if they have an accident – even if the employer believes that they’re done for the day. The Texas Supreme Court recently ruled that a sales rep was entitled to workers’ comp for injuries she suffered in a car accident after her last meeting of the day with clients.

She was headed home, although she had planned to drop off some marketing materials at an employer-provided storage unit on the way. The employer argued that the sales rep was going home and was no longer “at work” at the time of the accident. But the court disagreed, and said the rep was covered because she was in a company car on a job-related errand when the accident occurred.

Nearly 100,000 job discrimination claims were filed with the U.S. Equal Employment Opportunity Commission in fiscal 2010, an all-time record. Claims were up 7% over the previous year during the period, which ended in September 2010. They were up 21% over fiscal 2007.

There were several reasons for the increase. One is that the struggling economy led to more employees being laid off. Another is that the agency had a bigger budget, and spent money to educate employees and make it easier for them to file claims. The total amount the agency collected from employers in lawsuits it filed itself during the period was $404 million, also an all-time record.

An employee who suffered sporadic muscle flare-ups can sue his employer for disability discrimination where the business failed to accommodate his occasional problem, a federal appeals court recently ruled. The worker, a parts manager at an AutoZone store, had a condition that caused intermittent tightening in his back muscles. When the condition flared up, he couldn’t perform simple tasks.

The company fired him after keeping him on involuntary medical leave for more than a year. The worker sued under the Americans with Disabilities Act. In response, AutoZone argued that he wasn’t “disabled” because his condition only occasionally limited him in his abilities. But the court disagreed, and said a “predictable yet intermittent pattern” of muscle problems could amount to a disability under the federal law.

With so many people having filed for bankruptcy in the current economy, it’s important to know that it’s illegal for an employer to discriminate against a worker because he or she went bankrupt. Most everyone is aware that it’s illegal to discriminate on the basis of race or sex, but few people realize that “bankruptcy discrimination” also violates federal law.

However, the law isn’t as extensive as the laws against race and sex discrimination. For instance, a federal appeals court in Philadelphia recently decided that while it’s illegal to fire someone for going bankrupt, it’s okay to refuse to hire someone because of a prior bankruptcy filing.

The court said this was true because the discrimination rules in the federal bankruptcy laws are different from the ones in the federal civil rights laws. This ruling only covers a small part of the country, though. It’s definitely wise to speak with an attorney about any concerns over bankruptcy issues.

You might remember the “telephone game” in school, where the teacher would tell a student a secret. The student would pass the secret on to a classmate and it would circulate through the class. At the end, the last student would relate the secret and the class would learn how much the story had changed as it was passed along.

Businesses can experience a real-life telephone game in the form of rumors about people who work there. But employers who take action against employees based on unverified rumors risk being held responsible in court.

For example, a jury in Minnesota recently ordered the Marriott Hotel to pay damages to Jeff Moen, a bellhop who had been fired based on a rumor that he had brought a gun to a meeting with management and union representatives.

The bellhop had worked at the hotel for 22 years. Though he had been the subject of a couple of minor complaints early in his career, he had a glowing record in the five years before he was fired. [Read more...]

The federal government is stepping up its enforcement efforts against employers who fail to verify new employees’ eligibility to work in the U.S. In some cases, it’s levying serious fines against employers who don’t do proper verifications – even if the employer never hired an illegal worker as a result.

For example, clothing company Abercrombie & Fitch was fined more than $1 million by the government for failing to verify employees’ eligibility to work at its stores in Michigan. And in that case, there was no evidence that Abercrombie actually employed any illegal workers.

U.S. Immigration and Customs Enforcement simply found deficiencies in Abercrombie’s electronic I-9 verification system when it conducted an inspection. This was enough for a serious fine. [Read more...]

The rise of social media – including blogs, Facebook and Twitter – has opened up a whole world of communication to people. But it’s also opened up a lot of potential confusion and headaches in the workplace. That’s because, with a few strokes on a keyboard, an employee can now do things – such as insult the boss or make an inappropriate sexual comment to a co-worker – that used to happen mainly at the office holiday bash or an after-work gathering at the corner pub.

And as bad as such behavior may have been in the traditional context, it’s even more damaging on the Internet, where it’s documented for the whole world to see, and where the evidence can never be completely deleted. Social media also allow employees to widely distribute sensitive information or trade secrets, and post incriminating data and photographs.

Misuse of social media can easily result in economic harm to a company or a lawsuit for sexual harassment or a hostile work environment. As a result, many employers are creating social media policies to go along with their general Internet and e-mail policies, to try to head off problems and make it easier to deal with them if they occur. [Read more...]

An employer may be obligated to provide a deaf worker with a sign language interpreter at staff meetings, disciplinary hearings and training sessions, according to a California federal appeals court. The worker was employed by UPS as an accounting clerk. He sued under the Americans with Disabilities Act, claiming that an interpreter was a “reasonable accommodation” for his disability.

UPS argued that it had fulfilled its legal obligations by providing the worker with meeting agendas, notes and summaries. But the court said that it was up to a jury to decide whether the written information gave the employee the same benefits that other employees received from attending and participating in weekly staff meetings.

A male airport employee can sue for sexual harassment where he received repeated romantic overtures from a female co-worker and the employer didn’t put a stop to it, says a federal appeals court in San Francisco. The company argued that this wasn’t “harassment” because most men in the employee’s position would have been flattered and delighted by the co-worker’s romantic interest. But the court said that even if “most men” would have been flattered, the question was whether this particular employee – a recent widower – welcomed the constant flirting.

The law against sexual harassment “is not a beauty contest,” the court said, and even if the co-worker “looks like Marilyn Monroe, [the employee] might not want to have sex with her, for all sorts of possible reasons.”

An employer can be sued for the death of a laundry worker if it knew that employees routinely violated safety rules in order to improve productivity, a federal court in Oklahoma has ruled. The worker was employed at a Cintas plant in Tulsa that used automated machinery to clean uniforms. He died when he fell into a dryer while attempting to clear a conveyor jam. Cintas argued that it couldn’t be sued and that the worker’s family was limited to collecting workers’ compensation.

But the court said that that the company could be sued if it intentionally acted in a way that it knew was likely to cause the death. In this case, there was evidence that company managers knew that workers routinely tried to fix equipment while it was still operating, and that this practice had led to accidents at other plants.

A receptionist at a Minnesota cabinetmaking company was married to the president of the company. When business plummeted, the owner terminated the president, and terminated his wife as well. The wife sued under a state law that prohibits “marital status discrimination.” She argued that she was fired because of her marital status – that is, the only reason she was let go was because she was married to the president.

She claimed that the CEO of the parent company told her that “it would probably be awkward” for her to stay since her husband was leaving, and that her position was eliminated because she would probably have to relocate with her husband. The Minnesota Court of Appeals allowed the lawsuit, saying the woman had made a good argument that the company discriminated against her because of the identity of her husband.

Many employment agreements these days say that in the event of a dispute, both sides will go to arbitration. But this raises a question: Sometimes, if an employee files a lawsuit, the employer will respond in court, perhaps thinking it can get the court to dismiss the suit quickly. Only later will it insist on going to arbitration instead. So…is this valid, or does an employer that spends a long time fighting a lawsuit give up the right to stop in mid-stream and start over in a different forum?

That’s not entirely clear, but two federal appeals courts recently addressed the issue. In one case, a Ricoh employee claimed he was fired because he reported fraud at the company. Ricoh responded to the lawsuit, but five months later it demanded that the case go to arbitration. [Read more...]

Companies that conduct background checks on job applicants are increasingly facing scrutiny, and need to be careful that they are following the law. A growing number of companies have been routinely conducting credit checks and criminal background checks, in part because new technology has made it easier to do so.

However, the federal Equal Employment Opportunity Commission recently released a legal advisory letter warning that the use of credit checks to screen job applicants could be illegal if it leads to the disproportionate exclusion of women, minorities or other protected groups. [Read more...]

It’s illegal for an employer to retaliate against a worker who complains of discrimination. This is true even if the employer genuinely believes that the worker’s claim is untrue. What’s more, workers who are retaliated against – through changes in their job, or having to endure a hostile environment – can sue in court for damages. And these days, more and more workers are doing just that. In fact, “retaliation” is now the single most common type of complaint filed with the federal Equal Employment Opportunity Commission, making up 36 percent of all claims last year.

That means there are more claims for retaliation than for any of the specific underlying types of discrimination, such as race, sex, age or disability. In the past, many workers would sue for discrimination and “add on” a claim for retaliation, more or less as an afterthought. But these days, a growing number of workers are filing lawsuits that focus almost entirely on what the employer did after the initial complaint about job bias was made. [Read more...]

A returning veteran can waive his right to sue his employer for firing him, says a federal appeals court in Ohio. The employee worked at IBM. He left to serve in Afghanistan and later returned to his old job, but was fired after several months. At the time, he signed a waiver of his legal claims against the company in return for a $6,000 severance package. However, he later sued under a federal law that requires employers to re-integrate returning veterans into their workplace.

The employee argued that the federal law trumped his agreement, and that it would be wrong to let companies use severance offers as a tool to induce veterans to waive their rights. But the court sided with IBM and said the waiver agreement was valid.

The health care law passed by Congress earlier this year contains a wide variety of new rules for employer-provided health insurance, such as requirements of coverage for pre-existing conditions and dependents up to age 26. However, if a company had a plan in place on March 23, 2010 that didn’t meet these requirements, in some cases it can be “grandfathered” and remain exempt from them, at least for a time.

But this is tricky. If a company makes certain changes to its plan, it can lose its “grandfather” status. For instance, a company can be “de-grandfathered” if it eliminates or substantially reduces certain types of coverage, such as dropping cancer coverage. It can also lose grandfather status if it reduces employer contributions by more than five percent, raises co-payments more than $5 or 15 percent (whichever is greater), or raises deductibles more than medical inflation plus 15 percent.

Interestingly, companies can also lose grandfather status if they change carriers – even if the plan itself remains identical.

Two recent cases show that even comments that aren’t specifically sexual can still amount to sexual harassment.

In one case, a female doctor who worked at a clinic sued over crude comments made by a male doctor. She claimed that over the course of several years the doctor repeatedly made inappropriate comments about her weight gain while pregnant and about breastfeeding.

A federal judge threw the case out, saying that “general crudity” didn’t amount to sex discrimination. But an appeals court in Virginia reinstated the woman’s suit. It said that sexual harassment could include “highly personalized comments designed to demean and humiliate” the doctor and “ridicule her in the eyes of patients and drug salespeople.” [Read more...]

What if a manager reads about a worker’s family illness on Facebook?

Employers are struggling to comply with a new federal law that prohibits discrimination based on genetic information.

The Genetic Information Non-Discrimination Act, or GINA, not only makes it illegal for an employer to discriminate against workers based on genetic susceptibility to illness, but also makes it against the law merely to “acquire” such information about an employee, including family medical history. [Read more...]

An employee may have a right to take time off to care for a sick child even if the employee isn’t actually the parent of the child. That’s the word from the U.S. Department of Labor, which recently decided that an employee may have such a right under the Family and Medical Leave Act.

The Act is a federal law giving employees up to 12 weeks of unpaid time off each year for personal sick leave or to care for a family member who is ill. [Read more...]

As many employers (and quite a few students) found out this summer, unpaid internships can create a number of legal problems. Even though hiring unpaid interns is a common practice – and it’s even more popular in these tight economic times – the truth is that there are relatively few situations in which an unpaid intern can legally work in a for-profit business. Employers need to be on guard because the Department of Labor has announced that it is stepping up enforcement of violations.

According to the Department, the key to a valid internship program is that the internship must be primarily for the intern’s benefit – rather than for the employer’s benefit. [Read more...]

A restaurant’s tip pooling arrangement, which required tips to wait staff to be shared with non-waiters such as kitchen workers, didn’t violate federal labor laws, according to a decision by a federal appeals court.

The Vita Café in Portland, Oregon paid its waiters and waitresses $2.10 more than the federal minimum wage. Under its tip pooling policy, the café redistributed tips to all restaurant employees, with the majority (between 55 and 70 percent) going to kitchen staff and the remainder to the servers in proportion to hours worked. A waitress sued the café, claiming this violated federal wage rules. But the court decided that there is no general rule that tips are the property of an employee, and that employees must be allowed to keep all of their tips only if the café has taken a “tip credit” toward its minimum wage obligations.

Even though the overall number of sex harassment complaints has declined in recent years, the number of these complaints filed by men is on the increase. The number of harassment claims filed by men has doubled in the past 20 years. Last year, male employees claiming harassment hit an all-time high of 14 percent of the cases.

Most of these claims involve male-on-male harassment. Although same-sex harassment cases had been filed for years beforehand, the U.S. Supreme Court definitively allowed these claims under the federal sex discrimination laws back in 1998.

An employee who claimed her employer fired her in retaliation for complaining about gender and age discrimination can prove her case with less evidence than if she had sued for age discrimination itself, a federal appeals court has ruled. After 22 years with Xerox and being named one of the company’s top eight employees in the country, the employee was fired. She claimed she was fired by a new supervisor who immediately began making negative decisions about her because of her age and gender. She sued Xerox under Title VII, a federal anti-discrimination law that prohibits an employer from retaliating against a worker who has filed a discrimination complaint with the Equal Employment Opportunity Commission.

At trial, the jury was told that if her age and gender were “motivating factors” in firing her, then she proved retaliation, even if the employer had other motives for getting rid of her. The jury awarded her $67,000 in damages. Xerox appealed, arguing that the jury should have been told that in order to win, the employee had to prove that the employer would not have fired her but for her EEOC complaint. This would be the test in an age discrimination case under the Age Discrimination in Employment Act, where employees must show that they wouldn’t have been discriminated against but for their age. But the court said that the test for retaliation under Title VII is easier than the test for age discrimination itself. Therefore, the employee won.

It may be illegal for an employer to conduct a credit check of a job applicant or an employee, according to a recent letter from the Equal Employment Opportunity Commission. Even though credit checks don’t violate any federal employment laws, they could violate discrimination laws if they have a disproportionate impact on women, minorities or other protected groups, the EEOC says.

However, an employer can still conduct credit checks if it can show that doing so is necessary for it to operate safely or efficiently. For instance, screening the credit of a job applicant or employee might be appropriate if the person is to handle large amounts of cash.Some states are moving toward banning credit checks altogether by introducing laws that prohibit the practice.

In one of the first cases of its kind, a company is using an employee’s LinkedIn profile as evidence against her in a federal lawsuit. The company sued a former employee, claiming that she took company secrets and client lists with her to her new job. The employee was responsible for recruiting contract workers for a placement firm that specialized in IT work.

In its lawsuit, the company said that judging from the employee’s LinkedIn profile, she had made connections with over 20 of the company’s workers. The company claims she violated her non-compete agreement by emailing the employees and asking if they were “still looking for opportunities” and inviting them to “visit my new office and hear about some of the stuff we are working on.” [Read more...]

Buried in the mammoth health care reform law are some changes in employment law that will affect companies and their employees. A few of these changes were added at the last minute, with the result that not many people are prepared for them or are even aware of them.

Here’s a summary of the some of the major changes:

 • Mandatory break time for new mothers

Employers will be required to provide nursing mothers with “reasonable break time” to express breast milk under an amendment to a federal law that covers labor standards.

Companies will have to provide this time for up to one year afte [Read more...]

Suppose a Massachusetts employee signs a non-compete agreement, but then leaves to work for a competitor in California – a state that generally doesn’t approve of non-compete agreements. Can the agreement still be enforced against him?

Yes, according to a recent decision by a Massachusetts court. The employee was a vice president at the EMC computer company Massachusetts. After 20 years with EMC, he quit to become vice president at Hewlett-Packard in California. The employee had signed an agreement saying that if he left, he wouldn’t work for a competitor for a year. When EMC sued, he argued that the agreement wasn’t valid because it violated the law of California. But the Massachusetts court said that while that might be true, the agreement was still valid in Massachusetts, and Massachusetts law applied – so the employee was out of luck. [Read more...]

An employee took a seven-week trip to the Philippines. The trip was arranged so that she could obtain help for her husband, who suffered from a variety of health problems. However, almost half the trip was spent visiting friends, family, and local churches. The employee had applied for leave under the federal Family and Medical Leave Act, but the employer had turned her down. When she went on the trip anyway, it fired her.

A federal court sided with the employer. It said that the medical leave act “does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an ‘incidental consequence’ of taking him on vacation.”

A temporary employee in Alabama applied for a permanent position as an electronics technician, and took a drug test as part of his application. When the test came back positive, the employee explained that he took barbiturates to manage his epilepsy.

His supervisor – who knew about the test results – didn’t hire him for the permanent job, and fired him from his temporary position. The employee sued. He claimed the drug test violated the Americans with Disabilities Act, which imposes strict limits on when a drug test can be given. [Read more...]

An employee tore her rotator cuff, and her doctor gave her a note saying she shouldn’t be required to lift more than 10 pounds. Later, she was fired, and she sued under the Americans with Disabilities Act, claiming the firing was illegal because it was due to her perceived disability. At trial, a jury agreed that the employee was fired because of her perceived disability. However, it also decided that she would have been fired anyway, even if she hadn’t had a perceived disability.

So who wins? The employer wins in this case, according to a federal appeals court in Chicago. Cases like this are known as “mixed-motive” cases, because there are multiple motives for a firing, some of which are legal and some of which are illegal. But according to the court, as long as the employer would have done what it did anyway for legitimate reasons, the fact that it was also motivated by reasons that violate the disabilities law doesn’t matter and the employee can’t collect any damages.

 Congress has extended the law that allows additional COBRA coverage for workers laid off because of the recession. The new law grants a six-month extension of the 65-percent COBRA health insurance subsidy to cover workers laid off through February 28, 2010. Under the original law, the benefit extension was available only to workers who were laid off on or before December 31, 2009. The six-month extension will be provided for workers whose normal nine-month coverage has run out.

A female employee who claims she was fired because she didn’t have a sufficiently “feminine” appearance can sue for sex discrimination. That’s the word from a federal appeals court in St. Louis. [Read more...]

The employment provisions of the federal Genetic Information Nondiscrimination Act have now taken effect. This new federal law says that a company can’t refuse to hire people because they are genetically disposed to develop a particular disease or condition, even if this would cause the company’s health care costs to skyrocket.

The law not only prohibits discrimination based on genes, but also creates a new right to medical privacy for employees. In some cases, employers can get into big trouble if they violate this right to privacy, such as by requesting, requiring or disclosing genetic information about employees.

Workplace discrimination charges filed with the federal Equal Employment Opportunity Commission hit the second highest level ever in 2009, according to statistics from the agency. There were 93,277 employment discrimination charges last year. Awards to workers came to more than $376 million.

A number of factors appear to be coming together to create a “perfect storm” of discrimination claims, including: [Read more...]

Although the U.S. government has required employers to pay their workers overtime ever since the 1930s, it’s still unclear in many cases whether certain workers are eligible. A big reason is that the nature of people’s jobs and the workplace itself continues to evolve…so new questions keep coming up about eligibility.

For instance, the federal overtime law says that workers don’t have to be paid overtime if they have “administrative” jobs, which are jobs that involve using one’s discretion to make choices. In the old days, it was clear that factory workers on an assembly line weren’t making choices, whereas the factory managers were. But today, the line between administrators and non-administrators can often be blurry. [Read more...]