Employee Not ‘Otherwise Qualified’

An employer may not be required to accommodate an employee by providing infinite leaves of absences.

Joyce Whitaker worked for the Wisconsin Department of Health Services. In 2009, Whitaker advised the department of a disability involving chronic back pain. In August 2010, Whitaker requested a two-week FMLA leave for recurrent back pain, but before returning she requested additional leave until Dec. 27, 2010, for herself and to care for a family member. The department granted Whitaker’s…

Class-action Waivers Remains a Huge Issue for Employers

The 6th Circuit Court recently joined the battle over over whether the NLRA allows employers to require employees give up their rights to litigate or arbitrate class action suits.

There has been much judicial and administrative ink spilled over the past few years over whether the National Labor Relations Act permits employers to require employees to give up their rights to litigate or arbitrate class or collective actions. This is one of the most important issues facing employers, which have looked to class-action and collective-action waivers as an important…

Consider ADEA When Planning Staff Cutbacks

Employers considering implementing policies that impact a large number of employees must evaluate the impact not just as to workers over 40, but as to any recognizable subgroup of workers over 40.

“Disparate impact” claims under the Age Discrimination in Employment Act arise when an employer’s seemingly neutral employment policy has a disproportionate impact on workers over 40. Karlo v. Pittsburgh Glass Works involved a reduction in force. The employer did not run a statistical analysis to ensure that cutbacks did not disproportionately affect workers over 40. When plaintiffs sued, claiming a…

The National Labor Relations Act Protects the Rights of Non-employees Under Other Statutes‽

While the logic of this decision is certainly troubling, one can rest comfortably knowing that at some point this year, a majority of the NLRB will no longer sympathize with this viewpoint.

In MEI-GSR Holdings, LLC (5/16/17) , a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act. Let me pause for a second to let this sink…

Why Process Matters in HR Decision-Making

It’s a sad reality that when HR lacks process in decision-making, subjectivity creeps in and havoc ensues.

When evaluating how to structure a process robust enough to withstand regulatory scrutiny, technology can help answer compliance questions, assess risk and document the decision-making process. It’s safe to say that HR departments strive not just for the right result but ultimately, the most defensible outcomes that best mitigate risk. In an evolving era of HR and people management, “defensible”…

Is Your Non-compete Agreement Killing a Fly With a Sledgehammer?

You should be in the business of making money, not throwing it away chasing a fool’s errand.

At least half of my legal practice is serving as outside labor-and-employment counsel for small to midsize businesses. And, increasingly, much of that practice is consumed with drafting post-employment covenants, sending cease-and-desist letters to employees who are in violation of said covenants, or filing lawsuits to enforce said covenants; or, conversely, advising a business whether it can hire an employee…

This Is Why It Matters Who Runs the NLRB

It matters who runs these politically appointed government agencies. Do not let anyone tell you any differently.

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the board has vacillated on the issue of whether Weingarten rights also extend to non-union employees….

A Legal Firing for Fire Chief’s Fiery Posts

It is our job as employers to educate our employees about living in this new online world.

When I’m not lawyering, I’m speaking in public. And one of the topics on which I’ve been focusing of late is the balance between an employee’s privacy and an employer’s right to know.  One of the themes of this talk is that social media has irreparably blurred the line between one’s personal persona and one’s professional persona, and that employees…

Managing Risk: Keep a Target Off Your Back While Constructing Your Business

Particularly in construction, the risks of not focusing early on the fundamentals can quickly stymie growth and sustainability.

Risk management. It’s not something you thought you would have to be an expert on when you decided to start your own contracting business, right? The reality is that as a business owner, you have to be part risk manager if you want to survive, much less maximize the fruits of your labor. For construction contractors, the risks of not focusing…

Wait, an Employer Can’t Fire an Employee on FMLA Leave Caught on Facebook on Vacation?

An employment relationship is based on trust, and once that trust erodes the relationship is broken.

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in…