What Is a “Direct Threat” to Health or Safety Under the ADA?

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Most employers understand that the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. However, an employer may legally decide not to hire an individual with a disability if he or she poses a “direct threat to the health and safety” to themselves or others. So, what is a “direct threat?” The Equal Employment Opportunity Commission (EEOC) regulations implementing the ADA provide that a “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The italicized terms and phrases are important from the EEOC’s perspective. Continue reading this entry

”Smoking Gun” Comments Serve as an Important Reminder of the ADA’s Protection Against Associational Discrimination

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Most employers are well aware that the Americans with Disabilities Act(ADA) protects qualified individuals with disabilities against discrimination on the basis of disability and requires employers to provide reasonable accommodations to employees with disabilities, if those accommodations do not pose an undue hardship for the employer. However, a recent court decision reminds employers that even individuals without disabilities may be protected from discrimination under the ADA due to their association with another person who has a disability. Continue reading this entry

Congress Rallies Against New Union Election Rules

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The currently Republican-controlled U.S. Congress has made it clear that pushing back on the National Labor Relations Board’s (NLRB) recent efforts, which appear motivated by a mandate to tip the scales in favor of employees and to the advantage of union organizing, is high on the agenda. Last week, the Senate revealed its latest effort toward this goal when it passed S.J.Res.8. The resolution is a joint initiative with the House of Representatives aimed at blocking an NLRB rule passed last December from becoming effective. Continue reading this entry

The Importance of Tracking Employee Time — Simple Practices to Avoid Big Headaches

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Employers must keep track of hours worked by hourly, non-exempt employees. Any timekeeping method is permitted, as long as it is complete and accurate. The need to track hours might appear obvious at first, but in reality, this simple rule is not always easy to follow. For example, when hourly employees are out in the field, telecommuting, or traveling, requiring employees to account for their time can prove challenging. Traditionally, time tracking requirements envision a dated scenario in which employees start and end their shifts at a set location, punching in and out on a time clock (or some similar mechanism for tracking time). In that scenario, the employer has an accurate record of the length of each shift worked, as well as exact start and stop times. But, increasingly, this basic example is not the case. Continue reading this entry

Feds Fast-Forward “Fissured” Focus

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As David Weil, the still relatively new United States Department of Labor (DOL) Wage and Hour Administrator describes it, an industry is “fissured” when large companies no longer directly employ the workers that produce their products or services. Fissuring occurs through subcontracting, franchising, and an extended supply chain, and is especially prevalent in the restaurant, hospitality, and construction industries. As the theory goes, this undermines responsibility for, and compliance with, labor laws, in part because government agencies do not have the resources to police small companies. The solution: Focus enforcement actions on companies at the top of the pyramid, even when current joint employment laws do not support liability. Continue reading this entry