James Denis

Legal Briefing: Poor Business Judgment Not Proof of Age Bias

For six years, Frank Woodward was a director of sales at Emulex Corp. Woodward, who worked remotely in Massachusetts, had an excellent performance record, but because of a series of Emulex decisions, Woodward’s sales significantly declined by 2009. In response, Emulex eliminated the jobs held by Woodward and his two assistants and terminated Woodward.

Legal Briefing: Discrimination as a Substantial Motivating Factor

Wynona Harris, a bus driver employed by the city of Santa Monica, California, was fired on the same day she submitted a doctor's note to her supervisor stating that she could continue working through her pregnancy with limited restrictions. Harris sued, alleging pregnancy discrimination in violation of California's Fair Employment and Housing Act.

Legal Briefing: Religious Objections to Health Care

The Patient Protection and Affordable Care Act has been challenged in several recent cases. Its provisions require that employers provide contraceptive coverage. Several business owners and organizations have gone to the courts since they objected to providing health care to their employees that opposed the companies' religious beliefs.

Reassignment of Disabled Employees

Must an employer reasonably accommodate employees whose disability prevents them from doing their job by reassigning them to an equivalent or lower-level position? On March 7, the U.S. Court of Appeals for the 7th Circuit ruled "no," and held that…

NLRB Issues Proposed Union Election Changes

THE NATIONAL LABOR RELATIONS BOARD will be approving a series of changes intended to streamline procedures for employee votes for union representation that will include: limitations on pre-election hearings; restrictions on post-hearing requests intended to facilitate prompt rulings; elimination of…

ADA Accommodations Cases

Employers must not only engage in the interactive process, whereby an employer engages in a dialogue with the employee to find a reasonable accommodation, but also must ensure that such accommodations are fully implemented in a timely manner.

Reporters Not Exempt From FLSA Overtime Requirements

Employers should carefully review overtime pay exemptions found in the federal and state overtime laws because incorrect classifications may result in substantial liability not only under those laws, but also under related state laws involving unlawful business acts or practices.

Successor Liability Under Family and Medical Leave Act

An individual who has worked for an employer for less than 12 months may still be eligible for FMLA protection if that company is considered a successor in interest to the employee's former employer and the employee's combined length of service for both employers is 12 months or more.

Disabilities Protections Expanded

Because of the ADA Amendments Act's more expansive definition of a 'disability,' employers should be aware that workers with cancer or other diseases that are inactive or in remission may still be considered disabled, in which case reasonable accommodations must be considered.

Nursing Mothers Entitled to Reasonable Breaks

Because break time requirements for nursing mothers do not pre-empt state laws that provide greater protections to employees, employers are advised to review the applicable state laws and to provide reasonable break time for nursing mothers to express milk in a private place.

Employees and E-Mail Privacy Rights

Employers are advised to review their electronic communications policies and ensure that such policies clearly communicate the employer’s rules and expectations involving company e-mail and personal password-protected e-mail.

Religious Discrimination Claim Fails

When requested, employers must consider making reasonable accommodations for an employee to observe religious beliefs, unless the accommodation would cause the employer to suffer an undue hardship.

Overtime Pay Exemption Considered

Careful review of job descriptions, together with review of applicable state and federal overtime exemptions, is necessary to make informed decisions about overtime pay obligations.

Worker Said to Lack 'Prettiness' for the Job

Employers are advised that stereotypes as to how men or women should look or act create a basis for challenging adverse employment decisions. It is recommended that employers include in routine harassment and other training for managers the issue of potential liability and the increase of litigation over this issue.

'Me Too' Evidence in Sex Harassment Claims

Business owners must always be on their best behavior toward employees and customers. It is recommended that employers consider policies and procedures to alert all managers of their obligations, and provide employees with an avenue for complaints.

Health Condition Required ADA Accommodation

Employers should consider engaging in the ADA interactive process for a range of employee illnesses and conditions, even for illnesses that appear to be in remission. Subsequent amendments to the ADA, which became effective January 1, 2009, provide that employees with medical conditions in remission may be covered by the act.

No-Match Rule Abandoned in Favor of E-Verify

Employers are advised to verify that job applicants are eligible to work in the U.S. Although the Obama administration has made E-Verify the centerpiece of its workplace enforcement efforts, many employer groups, including the Society for Human Resource Management, criticize it as ineffective and inefficient. Despite DHS’ action and the ongoing debate over E-Verify, employers remain obligated to ensure that they do not hire or continue to employ individuals who are not authorized to work in the U.S.

$1.2 Million Judgment in Disability Case

Employers must always engage in an interactive process with employees seeking job accommodations. Employers should not assume that an employee is no longer able to perform the essential functions of her job with or without an accommodation, without speaking with the employee and receiving a doctor's documentation of the impairment.