Hot topics in the employment law world

Labor and employment law is a constantly changing area and it can be tough to keep up with the most recent developments that affect employers’ and employees’ rights in the workplace. To help you stay up to date, here are two areas where companies have been getting in trouble recently:

  • Disability, medical leave and privacy issues

Dealing with employee health issues can be a minefield for employers, as home-improvement retailer Lowe’s found out recently when it had to settle a disability discrimination claim brought by the Equal Employment Opportunity Commission for $8.6 million. The EEOC accused Lowe’s of violating the Americans with Disabilities Act (ADA) by firing workers who had been on medical leave longer than the limits the company had set. It seems Lowe’s made two mistakes here: It imposed an arbitrary medical leave limit that may have contradicted what employees were entitled to under the Family and Medical Leave Act (FMLA) and it apparently refused to accommodate workers with disabilities by allowing longer leaves that wouldn’t have imposed an unreasonable hardship on the company.

A case out of Pennsylvania also shows that employers must be careful when dealing with employees who need time off to deal with a medical situation. In that case, a worker took two months off to care for ailing parents. When she called to check in, she was told she would be fired if she didn’t resign on her own. Though it’s disputed as to whether the worker formally requested FMLA leave, a federal judge said it didn’t matter. It was enough that as soon as it was possible to do so she informed the employer of her need to take leave and told them why.

Employers have also found themselves in hot water recently over medical privacy issues. A fairly new federal law, the Genetic Information Nondisclosure Act (GINA), prohibits employers from asking questions on health history forms that could reveal genetic information. Meanwhile, the ADA bars employers from asking medical questions until they’ve extended a job offer. Yet a company in Missouri that was seeking warehouse workers made applicants fill out a seven-page online application with several dozen medical questions covering everything from allergies to sexually transmitted diseases. The EEOC filed suit on behalf of a would-be applicant who was scared off by the form and a federal judge found that the form violated both laws.

Meanwhile, a federal judge in Michigan found that another company looking for warehouse workers committed sex discrimination by imposing a strength test to weed women out of the applicant pool. Like the company in Missouri, it had to pay damages and has presumably learned the hard way to check with a lawyer to make sure its application procedures aren’t violating the law.

  • Wage, hour and labor issues

Wage, hour and labor issues can be tricky too, as employers in different locations have recently found.

For example, the transit authority in Washington, D.C. hired a private contractor to provide van drivers to transport disabled passengers, presumably to save money. 15 of the contractor’s employees “oversaw” the drivers, filing reports and recommendations. These employees wanted to unionize, but they’d been classified as “supervisors” who couldn’t join a union. However the National Labor Relations Board (NLRB) found that they weren’t really supervisors because they had no ability to discipline drivers. The NLRB also found that such misclassification constitutes an unfair labor practice.

In a separate case, the Department of Labor recently socked a farming operation that supplies produce to major grocery chains with a $1.4 million fine for paying American employees a lower rate than foreign workers it had hired through the H-2A temporary agricultural visa program. The minimum wage for foreign guest workers is higher than the regular minimum wage, but when a company hires both American workers and guest workers, the law requires that they both get the same pay and benefits.

Finally, employers have been running afoul of labor laws through heavy-handed attempts to limit employees’ online activities.

For example, casino giant Caesars Entertainment Corp. recently got into trouble with the NLRB due to a company rule that employees couldn’t use the company email system to distribute any “non-business” information. Such a restriction was overbroad, since it could prevent employees from discussing working conditions. These sorts of communications are protected under federal labor law as “concerted activity.” In other words, workers have a right to engage in these types of conversations online because it’s part of their right to organize.

Similarly, a worker at a Chipotle restaurant outside Philadelphia was fired a year ago for sending out a “tweet” on Twitter complaining about his wages. An administrative law judge with the Department of Labor ruled that Chipotle had committed an unfair labor practice, and now the worker gets back pay and could have had his job back if he still wanted it.

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