Archives: Employment Litigation

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FAQs on the ADA’s Application to Addicts

23.5 million Americans aged 12 or older—approximately 10% of the U.S. population—consider themselves in recovery from drug or alcohol abuse problems. In light of these staggering numbers, as well as the ADA’s explicit protections for addicts, litigation related to employee addiction is increasingly common. The following FAQs address legal responsibilities with respect to addicted employees. … Continue Reading

The Elephant in the Corner … Do You Have to Pay Employees for Checking Work Email?

Connectivity is addictive. Managers text and email staff 24/7; workers check their phones incessantly 24/7. How often? Okay, here are the actual numbers from a recent Gallup poll: 11% check it every few minutes; 41% a few times an hour; and 20% of Americans claim once an hour. If you haven’t checked in last 60 … Continue Reading

Don’t Cry Over Spilled Milk: Best Practices for Handling Nursing Employees

“First comes love, then comes marriage [or not – no judgment], then comes the baby in the baby carriage” and then – for nursing working mothers – comes expressing milk at the workplace. Nursing employees are currently afforded workplace protections under several major federal laws; plus, many state and local governments have expanded these federal … Continue Reading

Retaliation Claims Under The False Claims Act: A Pop Quiz

President Lincoln signed the False Claims Act (FCA) in response to scoundrels who sold the Union Army “gunpowder” kegs full of sawdust, uniforms sewn with used rags that disintegrated when wet, and boots made of cardboard that fell apart when worn. To incentivize citizens to protect the government, the FCA provided a bounty to individuals … Continue Reading

Is a Severance Policy More Like an ERISA Plan, a Writing Desk, or a Raven?

… The Hatter opened his eyes very wide on hearing this; but all he said was, “Why is a raven like a writing-desk?” …“Have you guessed the riddle yet?” the Hatter said, turning to Alice again.  “No, I give it up,” Alice replied. “What’s the answer?”  “I haven’t the slightest idea,” said the Hatter.  “Nor … Continue Reading

Is There Really An Obligation To Provide Miranda Warnings In Employee Interviews?

Investigations of employment-related claims routinely require employee interviews. Reports of sexual harassment, picket line misconduct, or whistleblowing all trigger such investigative interviews. Conventional wisdom suggests that employers and their counsel should ask the interviewees to maintain what is covered in confidence and even to document that confidentiality commitment in writing. But, developments on multiple fronts … Continue Reading

Defining ADA Disabilities in a DSM-V World

Charles Dickens and his characters lived in a pre-ADA world. Yet, those struggling with the definition of “disability” under the ADA share the same frustration as Mr. Bumble in Oliver Twist: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass — a idiot.’” Under … Continue Reading

When Is Enough Leave. . .Enough?

Disability discrimination cases seem to be the flavor of the day. Given the flood of disability discrimination cases, how can employers know how much leave is reasonable? And when can an employer safely say, “this leave of absence conversation is over”? Employees, like the fisherman’s wife in the Grimm brothers’ fairy tale, The Fisherman and … Continue Reading

Brave New World: Evolving Protections For Transgender Employees

Aldous Huxley wrote in his novel Brave New World that “If one’s different, one’s bound to be lonely.” With increased visibility (Orange is the New Black’s Laverne Cox; Caitlyn Jenner), transgender people are both less different and less lonely. State anti-sex discrimination laws are expanding to include explicit protections for transgender employees. Currently, nineteen states … Continue Reading

Innovations In Settling Wage Hour Class/Collective Actions

Settling Rule 23 opt-out class actions is straightforward: the agreed-upon settlement is presented to the court for preliminary approval of a Rule 23(e) settlement class and — if the settlement is not approved — the parties return to their pre-settlement status: i.e., there is no class. But, following the conventional wisdom on FLSA opt-in rules … Continue Reading

Accommodating Religion: Ignorance Is Not Bliss

Title VII imposes an obligation to accommodate religion, including “all aspects of religious observance and practice, as well as belief.”  42 U.S.C. § 2000e, subd. (j).  This obligation has drawn renewed attention following the U.S. Supreme Court’s decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (June 1, 2015). … Continue Reading

Tattoo-ism: Where Body Art Meets Employment Discrimination

Tattoos and body piercings have become increasingly prevalent in the U.S. — over 20% of adults are now tattooed. This number only will be increasing because 38% of millennials (born from 1981-1992) have tattoos, approximately half of whom have two or more, while 23% of millennials have body piercings. More of a concern for employers, … Continue Reading

Allergic At Work Is Not Allergic To Work

Food allergies are widespread. Anyone who has a child, works at or with a school, or reads extensively knows that the increasing prevalence of food allergies among children is one of today’s biggest medical mysteries, not to mention a huge problem. The number of children with nut allergies has more than quadrupled since 1997, which … Continue Reading

What Do You Do When The Ugly Allegations In A Lawsuit Against Your Company Go Viral?

Take your cue from two leading ladies of television – Olivia Pope (Scandal) and Liz Garvey (Babylon).  In a world of instantaneous communication and open access to information, Liv and Liz are masters of crisis management. The New York Times recently outlined how electronic court filings (especially in harassment or whistleblower cases) go viral and … Continue Reading

Does YOUR Website Have to be Accessible Under the Americans with Disabilities Act?

Is the internet a place of public accommodation: a virtual town hall or a virtual shopping mall or a virtual movie theater? Courts still struggle with that. Physicalist courts say that the ADA requires a physical location. Ouelette v. Viacom, No. cv 10-133-M-DWM-JCL, 2011 WL 1882780 (D. Mont. March 31, 2011) (no ADA claim re … Continue Reading

Alter Egos: Where Fiction Becomes Labor Law And Vice Versa

Bruce Wayne. Clark Kent. Sir Percy Blakeney. In addition to being dashing literary figures, each of these men share a common trait – each has an alter ego. Donning a cape, the stoic Bruce Wayne becomes the intrepid Batman. The nerdy, spectacled Clark Kent transforms into the swashbuckling Superman. The foppish, self-obsessed Sir Percy Blakeney … Continue Reading

NLRB Toasts Chicago Bakery On English-Spanish Translation

Mistranslation is both innocent and ubiquitous. Mark Twain had fun with the mistranslations of one of his short stories into French. Indeed, literary superstars frequently acknowledge that translations are invariably imperfect. Jorge Luis Borges’ line — “the original is unfaithful to the translation” — exposes that variance with irony. Both the innocence and the inevitability … Continue Reading

“No Hire” Agreements: Unlawful Collusion or Necessary Self-Protection?

Recent headlines from the Silicon Valley suggest that “no-hire” agreements are illegal, immoral, and unsustainable. But, those headlines address blanket restrictions negotiated between competitors. Targeted restrictions between supplier company and customer company are entirely different. The Department of Justice’s Competitive Impact Statement (“DOJ CIS”) in those Silicon Valley cases acknowledges that distinction: “An agreement that … Continue Reading

The Goldilocks Paradigm In RIF Releases

Obtaining an effective waiver of claims in the context of a reduction in force, an exit incentive, or other termination program is tricky. The Older Workers Benefit Protection Act (OWBPA) has numerous requirements that must be followed “just right” in true Goldilocks fashion. Compliance with the OWBPA is crucial because an employee, over the age … Continue Reading
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