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...]

The Obama administration has announced that it intends to focus its immigration enforcement efforts on companies that knowingly hire illegal immigrants, by stepping up its audits of I-9 forms – the employment eligibility documents that employers must fill out for every worker. This appears to be a change from the Bush administration, which had placed more emphasis on arresting illegal workers as opposed to going after employers.

On one single day in 2009, Immigration officials served “Notices of Inspection” on 652 businesses around the country. That compares to 503 such notices issued during the entire year of 2008. Employers often complain that the I-9 requirements are difficult for them, because it can be hard to determine whether identity documents are authentic and because they fear that questioning the documents too closely could open them up to discrimination claims.

A worker who waited five months to complain to her employer that a co-worker was sexually harassing her can’t sue the company, even though she said she waited so long because she was afraid of retaliation. That’s the result of a federal appeals court ruling from Washington, D.C. The employer’s sex harassment policy told employees to report harassment immediately to an EEO manager. But instead of complaining right away, the worker simply posted the company’s sex harassment policy on her door. She says the co-worker warned her that if she complained about him to management, no one would believe her, and people would think that she was the problem.

 However, the court said that the worker’s fear of reporting the harassment wasn’t reasonable. It said the only person who discouraged her from reporting it was the co-worker, and he wasn’t her supervisor, didn’t threaten her with any adverse employment action, and had no other leverage with which to intimidate her.

A woman who was fired shortly after she returned from maternity leave can file a pregnancy discrimination lawsuit against her employer, says the Iowa Supreme Court. Although the woman obviously was no longer pregnant at the time she was fired, the court said this didn’t matter, because pregnancy discrimination includes discrimination against “women affected by pregnancy, childbirth and other related conditions,” so it includes a new mother.

The woman was the marketing director at a small company that made natural body care products. A few weeks after she was hired, she announced that she was pregnant. She claims that at the time, the company’s chairman asked her if she was going to “be like all those other women who find it’s this life-altering experience and decide to stay home.” [Read more...]

The Equal Employment Opportunity Commission has revised the poster that employers are required to display in the workplace to reflect new federal employment discrimination laws, including the Genetic Information Nondiscrimination Act and recent changes to the Americans with Disabilities Act. The revised poster also includes updates from the Department of Labor. It is available in English, Spanish, Chinese and Arabic.

To view or print the poster, go to www.eeoc.gov/self_print_poster.pdf.

To request the poster from the EEOC, go to www.eeoc.gov/posterform.html.

Two new cases show that an employer can be sued for discrimination even if the person who was discriminated against – or for that matter, the person who did the discriminating – was an independent contractor. In a case in Pittsburgh, a black woman was terminated as a sales representative for a company that made adjustable beds. She claimed this was because of racism.

A federal appeals court said that the woman couldn’t sue under Title VII, the most well-known employment discrimination law, because she was a contractor, not an employee. However, she could sue under a different law. The other law was passed by Congress during the Civil War era and prohibits race discrimination in contracts – including employment contracts. [Read more...]

Can an employee who is returning to work after surgery be given an exam to make sure he or she is up to the job? The answer is yes…although this is a very tricky area, because these exams can also violate the Americans With Disabilities Act.

In a recent case, a mill worker underwent knee surgery. Before she could come back to work, her employer made her take a “physical capacity evaluation.” An occupational therapist evaluated the employee and recommended that she not return to work, and she was terminated. She sued under the ADA. [Read more...]

The number of people who can sue for disability discrimination under the Americans With Disabilities Act has greatly increased. That’s because the federal government has issued new rules that explain when someone is “disabled.” And under these rules, a lot more people qualify than in the past. Previously, when an employee brought a lawsuit under the ADA, it was very common for there to be a lengthy dispute about whether he or she was in fact disabled. However, as a result of the new rules, it will be much easier for employees to prove that they’re disabled – so more lawsuits will focus instead on whether the employer reasonably accommodated the worker.

The new rules were published by the federal Equal Employment Opportunity Commission. Here’s an explanation of the changes. To understand how they work, it’s important to know that the ADA defines a disability as an impairment that substantially limits a person with regard to a major life activity. The new rules make it easier for workers to prove that they have an impairment, and they make it easier to show that their impairment limits a major life activity. [Read more...]

Starbucks’ policy of allowing shift supervisors to share in a “tip pool” is legal, says a California appeals court in overturning a $106 million verdict against the coffee-shop giant. The case was a class action brought by a group of “baristas” who claimed that the shift supervisors were management employees and thus ineligible to share in tips.

 But the court said that the customer tips in this case were intended to reward the entire team of service employees, including the supervisors, so allowing the supervisors to share in the “pool” was okay. This case has received widespread attention, and made many people aware of the highly complex rules that can govern which employees are allowed to participate in tip pools. The California decision only applies to that state and to the particular arrangement at Starbucks; the result elsewhere might be different.

An employee who was laid off from his job is entitled to be paid for any earned but unused vacation time, according to the Massachusetts Supreme Court. The worker in this case was terminated after 21 years on the job. Under the company’s written policy, he was entitled to five weeks of paid vacation each calendar year – but he wouldn’t be reimbursed for unused time if he were laid off. According to state law, laid-off employees must be paid any compensation they have earned up until their last day of work. The employer argued that the employee hadn’t “earned” any vacation pay because of the terms of its policy.

But the court sided with the employee. It said the state wage laws are meant to protect employees’ right to wages, and they wouldn’t have any teeth if employers could simply create policies that negated the rules.Laws vary from state to state on this issue. We’d be happy to help you if you have any questions about what compensation is due at the time of a layoff.

An employee who accepted a voluntary buyout package from her employer gave up her right to sue for sex discrimination, a federal appeals court has ruled. The employee worked for Ford Motor Company and accepted a $100,000 buyout. As part of the deal, she signed a contract giving up any legal claims that arose before the buyout, although she didn’t waive “any rights or claims that may arise after” the buyout.

She then sued for sex discrimination. She argued that this was okay because her claim of sex discrimination was filed after the buyout. But the court said that even if the lawsuit wasn’t filed until after the buyout, the alleged discrimination happened before the buyout. Therefore, the claim “arose” before the buyout, and the employee had signed away her right to bring it.

Older workers will have a harder time suing for age discrimination as a result of a recent Supreme Court ruling. The ruling makes it more difficult to sue for age discrimination than it is to sue for other types of bias, such as sex, race, religion, or national origin.

This is true for two reasons:

● First, employees who sue for age discrimination now have to prove that age was the motivating cause behind their firing or demotion. They have to show that they wouldn’t have been fired or demoted but for their age. [Read more...]

Employers who use tests to hire or promote employees now face a tough dilemma if those tests end up significantly disfavoring minority workers. If the employer uses the test results, it could be sued by the minority workers on the grounds that the test had an unfair impact on them. On the other hand, if the employer throws out the test results, it could be sued by the non-minority workers on the grounds that they did better on the test and were discriminated against based on race. That’s the result of the Supreme Court’s recent decision in a case involving Connecticut firefighters.

In that case, the fire department threw out its test results because no black employees qualified for a promotion. The department was then sued by white and Hispanic firefighters who did well on the test.  The Supreme Court okayed the firefighters’ suit. [Read more...]

Shortly before a nursing director left her job at a home health-care agency, she contacted a lawyer about suing the agency for discrimination. She began e-mailing back and forth with the lawyer – using a laptop provided by the agency.

The employee didn’t use her work e-mail address; rather, she used a personal Yahoo! e-mail account with a password. But when the employee left, the agency scanned the hard drive of the laptop and found all the e-mails. It kept them for use in the lawsuit. Is this okay? [Read more...]

A fired employee who received a $65,000 settlement has to pay income tax on this amount, according to a decision from the U.S. Tax Court. The employee was fired after working for 30 years at the “Story Land” amusement park in New Hampshire. He claimed he was wrongfully terminated and that Story Land officials subsequently damaged his reputation. The $65,000 was agreed to during a mediation session.

In general, people who receive a jury award don’t have to pay income tax on it if it was for physical injury or physical sickness, or was intended to compensate them for psychological treatment for emotional problems. The employee in this case claimed he suffered physical problems as a result of the firing, including depression, a sleep disorder, and elevated blood sugar levels, and that he saw a psychologist as a result.

But the court said that wasn’t good enough. It said the settlement in this case was for wrongful firing and defamation. While the employee might have suffered emotional distress, the settlement was intended as being in place of wages and wasn’t designed primarily to compensate him for a physical injury or a psychologist’s bills. In the end, the employee had to pay more than $13,000 in back taxes, as well as a $2,650 penalty to the IRS.

An independent contractor can sue for injuries on the job – even though the workers’ compensation law generally bars lawsuits for workplace injuries, according to an appeals court in California. The worker was hired by a subcontractor to install a canopy at a gas station. He fell into a hole at the construction site and was injured.  He sued the general contractor and the subcontractor. The defendants argued that the suit should be thrown out because of the workers’ comp law. But the court said the suit could go forward because the worker was a contractor, not an employee. An independent contractor isn’t eligible for workers’ comp benefits, so the ban on lawsuits doesn’t apply, the court said.

A nurse who worked as a family case worker – and who had to drive to various people’s homes to evaluate their situation – suffered post-traumatic stress disorder after a car accident. As a result, she had difficulty driving. She took multiple leaves of absence, received unsatisfactory evaluations, and eventually left her job. Later she sued, claiming she was discriminated against because of a disability.

So the question was, is “fear of driving” a disability? Not under federal law, a federal appeals court in Chicago decided. Under the law, a “disability” is something that substantially restricts a person in a major life activity. And the court said that driving doesn’t count as a major life activity. Many Americans choose not to drive, and there is no inherent right to drive, the court said. However, the court noted that an employee’s fear of driving might amount to a disability if it somehow interfered with some other activity that qualified as a major life activity.

A police department can refuse to allow a female police officer to wear a traditional Muslim headscarf, a federal appeals court has decided. This didn’t amount to religious or sex discrimination.

The officer had asked to wear a headscarf that would cover her hair and the back of her neck, but the police department’s dress code didn’t contain a provision for religious attire. The court sided with the police department, saying it would be an “undue hardship” for the department to have to allow religious dress. It noted that the police commissioner had testified that it was vital for the department to promote the appearance of religious neutrality in dealing with the public and in working together cooperatively.

An employer who fired a worker for performance problems that were discovered while he was on medical leave didn’t violate the Family Medical Leave Act, a federal appeals court has ruled. The employee requested leave for a health condition that required hospitalization. While on leave, the company hired replacement workers who discovered multiple problems with the employee’s work. The company terminated the employee the day he returned from leave. The employee sued, claiming the firing was in retaliation for his taking leave. But the court disagreed, finding that there was undisputed evidence that the company discovered the problems during the leave, investigated the problems, and determined he was responsible for them. As a result, the firing was fair and wasn’t merely retaliation.

Can an employer demand that employees give up their right to go to court with employment disputes, and instead submit any case to arbitration? Many companies have been doing so lately. They often prefer arbitration because it is quicker, less expensive and more private.

However, it’s still unclear whether – and when – employers can legally do this. One result has been that many employees are now going to court to resolve the question of whether they can go to court. Here are three of the latest cases that have addressed this issue: [Read more...]

Laid-off workers will have to pay less to maintain their health insurance as a result of changes enacted by Congress – but these changes are creating new problems for employers who must take steps to comply with the law. The changes affect a federal law known as COBRA. The COBRA law says that fired or laid-off employees who had been eligible for health insurance through their employer have a right to continue receiving that insurance for up to 18 months. Normally, the employees have to pay their full share of the premiums – with no employer subsidy – but even so, this is usually much cheaper than buying health insurance individually and not as part of a group plan.

However, under the new changes from Congress, employees who are fired or laid off between September 1, 2008 and December 31, 2009 get a break. They only have to pay 35% of the cost of the insurance. The employer must pay the remaining 65% – although the employer can then be reimbursed for this amount by taking it as a credit against federal payroll taxes. [Read more...]

The first law signed by President Obama will make it easier to sue an employer for wage discrimination. The law will restart the statute of limitations for a pay bias claim with each new paycheck that is issued. The Lilly Ledbetter Fair Pay Act is named after Lilly Ledbetter, who worked as a plant manager for Goodyear Tire but realized only after some years had passed that she was getting paid less than her male counterparts. When she sued for wage discrimination, the U.S. Supreme Court threw the case out, saying she had filed it too late – after the 180-day limit which began when the pay decision was first made.

The law overturns the Supreme Court decision. Now, employees alleging pay discrimination will have 180 days from the issuance of any discriminatory paycheck to file a claim. A number of business groups, including the U.S. Chamber of Commerce, opposed the bill and said it would lead to increased litigation costs and force companies to defend decades-old pay-scale decisions.

Some employers are hiring private investigators to spy on workers and find out if they are abusing their time off under the Family and Medical Leave Act. There has been an increase recently in requests for time off under the Act, and a number of employers suspect that some workers are taking time off without a valid reason.

Two federal courts have sided with employers in these cases. [Read more...]

A worker who claims she was retaliated against after participating in an internal sex harassment inquiry about a co-worker can sue her employer for sex harassment, the U.S. Supreme Court recently decided. The employee was interviewed as part of the company’s investigation of allegations that a company director had committed sexual harassment. During the interview, the employee described incidents of egregious harassment against her and other employees. The director was verbally reprimanded but not terminated.

The employee was later placed on administrative leave and ultimately fired. The company claimed it was for irregularities in the payroll office which she oversaw.  But she sued for sex harassment, claiming she was fired in retaliation for participating in the harassment inquiry. [Read more...]

An independent contractor can sue for injuries on the job – even though the workers’ compensation law generally bars lawsuits for workplace injuries, an appeals court in California has decided.

The worker was hired by a subcontractor to install a canopy at a gas station. He fell into a hole at the construction site and was injured.  He sued the general contractor and the subcontractor. The defendants argued that the suit should be thrown out because of the workers’ comp law. But the court said the suit could go forward because the worker was a contractor, not an employee. An independent contractor isn’t eligible for workers’ comp benefits, so the ban on lawsuits doesn’t apply, the court said.

Can an employer adopt a grooming policy that requires male workers who have contact with customers to be clean-shaven and have trimmed hair? Maybe … but this might amount to religious discrimination, according to a Massachusetts Supreme Court decision. The worker in this case was a technician at a Jiffy Lube service station. He was a Rastafarian and his religion did not permit him to shave or cut his hair. The company told him that if he refused to abide by the grooming policy, he could only work in the lower bay and would not be allowed to have contact with customers.

In the religious discrimination lawsuit, the company argued that it shouldn’t be forced to make an exception for the worker because the company had a right to control its public image. The court sent the case for trial, but it suggested that the employer might have to give in. To win, the court said, Jiffy Lube would have to show that all conceivable accommodations of the employee’s religion would impose an “undue hardship” on its business.

A company can force departing employees to forfeit their stock in the company in certain circumstances, according to the Connecticut Supreme Court. The company allowed employees to elect to receive restricted stock in lieu of bonuses or through voluntary payroll deductions. However, employees who quit or were fired for cause were required to forfeit the stock as well as the right to the amounts paid for the stock.

The employees in this case argued that the forfeiture requirement violated state wage laws, because the company could in effect withhold accrued wages from workers. But the court decided that the bonuses didn’t constitute “wages” under to the state wage law. That’s because they were awarded on a discretionary basis and weren’t directly linked to the efforts of the particular employee. [Read more...]

A company didn’t have to give 60 days’ notice of layoffs where it was forced to shut down operations due to the sudden loss of a major customer, according to a recent federal court ruling.  Normally, under the federal “WARN Act,” companies with 100 or more workers must provide 60 days’ notice of a plant closing or a mass layoff.  However, there is an exception for “unforeseeable business circumstances.”

 The company’s financing problems resulted in its largest customer, which accounted for 40 percent of its orders, suddenly switching to another supplier. Even though the workers argued that the company had been going through financial difficulties for months and knew in advance about the possibility of layoffs, the court said that employers shouldn’t be burdened with having to notify workers of the possibility of layoffs every time there is a financial problem that might prove temporary.  The loss of the company’s main customer in the midst of all of its other problems was unforeseeable, and it was enough that the company gave its employees written notice six days after it learned of the loss of the customer.

New rules apply to workers requesting time off under the federal Family and Medical Leave Act, or FMLA. Generally, FMLA allows workers to take up to 12 workweeks of unpaid leave per year due to a serious health condition, a family member’s serious health condition, or a birth or adoption. The Act also allows leave due to a relative’s military deployment. Employees are eligible in most cases if they have worked at least 12 months for an employer that has 50 or more employees.

Here are some of the major changes in the Labor Department’s new rules: [Read more...]

With the economy in a downturn, there may well be an upturn in disputes about non-compete agreements, which prohibit employees from leaving and working for a competitor. Rising unemployment levels and the difficulty of finding a new job could lead many former employees to challenge these agreements. And this is true at a time when many courts are striking down these agreements or severely limiting them.

 The law varies from state to state, but generally a non-compete agreement must be reasonable in duration (usually less than two years), the employee must receive something in return for signing it beyond a simple continuation of employment (such as specialized training, bonus pay, or something else of value), and the agreement must actually be necessary to protect a valid business interest. [Read more...]

E-mails between an employee and an employer could modify the terms of their employment contract – even though the contract said that any changes had to be in writing and signed. That’s the result of a decision from a New York appeals court.

The case involved the owner of a public relations firm who sold his firm to a French company. Their contract provided that the owner would continue as CEO for three years. After six months, though, he had lost the firm’s biggest client and fallen short of revenue targets. He was told that he could either leave the company or stay to work on new terms. The owner e-mailed the company and said, “I accept your proposal” (about the new terms), and the company e-mailed back saying it was happy with his decision. [Read more...]

Is it possible for employees who are paid a salary to sue because they didn’t get overtime? It’s highly unusual, but a recent case shows how it can happen.

The case was brought by a group of Wal-Mart employees who claimed that the company changed their base salary so often that they were in effect hourly wage earners.  In general, federal law requires overtime pay for hourly workers who work more than 40 hours a week, it but exempts professional and salaried employees. The workers in this case were full-time Wal-Mart pharmacists. Wal-Mart agreed to pay them a base salary based on a minimum guaranteed number of hours, whether they worked those hours or not. But the workers claimed they weren’t really salaried employees, because Wal-Mart frequently changed the arrangement on them.  For example, one employee’s payroll records showed that on five occasions the company refused to pay his base salary because it had been altered based on “verbal agreements,” or it instituted “base changes” based on days off. A court said the case could go forward.

An employee who claimed she was sexually harassed by a co-worker – who wasn’t her boss – can sue her employer for not having an effective policy in place to deal with such a problem, according to a recent court case. The employee claimed that a worker in another department sent her sexually explicit pictures, made lewd phone calls and left suggestive items at her work station. She sued the employer, claiming that the company fostered a “hostile work environment” in violation of a state anti-discrimination law.

Most companies focus on harassment by bosses, but it’s equally important for employers to have a policy in place to deal with harassment by co-workers. (It’s also a good idea for businesses to address harassment by third parties, such as clients or customers.) Generally, employees should have a written procedure that explains how to complain about any form of harassment.

The Department of Homeland Security has issued new rules that may require companies to fire certain workers. The rules come into play when the information that workers provide their employers doesn’t match the data on file with Social Security. Where this happens, the government can send the employer a “no match” letter, and the employer then has 90 days to resolve the discrepancy or fire the worker.

The idea is to reduce the number of people working illegally in the U.S. The Department originally issued the rules in 2007, but they were blocked by a federal court, which said they would impose unfair hardships on both businesses and employees in cases where there were errors in the Social Security Administration’s records. [Read more...]

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. That’s the result of a new federal law, called the Genetic Information Non-Discrimination Act, or GINA.

But this law does more than just prohibit discrimination based on genes. It 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.

Specifically, the law prohibits employers from requesting, requiring or disclosing genetic information about employees. This kind of information can come up when employees ask for time off under the Family and Medical Leave Act or for an accommodation for a disability. Employers frequently request medical records to support such a request. [Read more...]

A new federal law makes it easier for many disabled workers to request workplace accommodations and to sue for discrimination. The law amends the Americans With Disabilities Act so that it covers more workers. It applies after January 1, 2009. The original ADA protected people with disabilities, and defined a “disability” as a physical or mental impairment that substantially limits one or more major life activities.

But that left open a question – suppose a worker could treat an impairment with a drug or a medical device, such that with the drug or medical device he or she was no longer limited in a major life activity. Was that worker still “disabled”? [Read more...]