The ADA Amendments Act of 2008 (ADAAA) unquestionably imposes extensive requirements on employers and covers a broad range of medical conditions. As such, human resources professionals must grapple with the unique challenges that arise in every situation. However, there are some sure-bet ways to increase your chances of having to defend disability discrimination claims asserted by the EEOC or an attorney on behalf of an employee or former employee.Continue reading this entry
Supreme Court Says “Wait a Minute!” to Using Arbitration to Prevent Class Action Claims
Posted in New and Recent LegislationIn the past couple of years, the United States Supreme Court has issued several arbitration decisions that many have thought might spell the roadmap for avoiding the wave of class action litigation brought against employers. Specifically, in Stolt-Nielsen v. Animal Feeds International, the Court ruled that arbitration could not be conducted on a class action basis unless the arbitration agreement specifically allowed for class claims. In AT&T Mobility v. Concepcion, the Court further stated that states generally cannot impose non-contract restrictions on the enforcement of arbitration agreements because the Federal Arbitration Act creates a national policy favoring enforcement. In response to these decisions, many have suggested that employers can prevent class action claims by having employees sign arbitration agreements requiring the resolution of disputes through arbitration and require such arbitration proceedings to occur only on an individual basis.Continue reading this entry
Retaliation Gets a Broader View
Posted in Discrimination, Retaliation and HarassmentRetaliation cases continue to grow in number and, in a decision on June 4, 2013 of the Tenth Circuit Court of Appeals, in scope as well. There, the Court in Lockheed Martin Corporation v. Administrative Review Board of the United States Department of Labor gave an expansive reading of what constitutes protected activity and retaliation under the Sarbanes-Oxley Act (http://www.soxlaw.com/) (SOX).Continue reading this entry
Considerations When Changing Enforcement of Personnel Practices
Posted in Human Resources/ Employer MattersYou catch a not-so-good employee sleeping on the job, and you want to fire him. You call your attorney, and the attorney asks how you have handled similar situations in the past. You tell the attorney it has been a mixed bag, but usually, employees caught sleeping on the job have been given a final warning. The attorney tells you “consistency is everything” in an employment case, and advises that you should not terminate the employee, noting “too much risk.”Continue reading this entry
Can “Mooting” a Class or Collective Action Be a Sound Defense Strategy?
Posted in Human Resources/ Employer MattersProcedural rules that govern lawsuits in federal court permit defendants to make an “offer of judgment,” which is a mechanism allowing a defendant to offer to settle a lawsuit. If a plaintiff is offered such a settlement and rejects it, and thereafter wins either the same or less than the amount contained in the offer of judgment, the plaintiff generally cannot recover for any costs incurred after rejection of the offer of judgment, such as attorneys’ fees. This mechanism can provide settlement leverage and, interestingly, it may now provide a helpful defense strategy for managing class and collective actions.Continue reading this entry
E-Verify — Am I Required to Use It?
Posted in Immigration, Nationality & Consular LawAccording to the U.S. Citizenship and Immigration Services (USCIS) Web site, “U.S. law requires companies to employ only individuals who may legally work in the United States — either U.S. citizens, or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same strength also attracts unauthorized employment. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free, and easy to use – and it’s the best way employers can ensure a legal workforce.” Notwithstanding the USCIS’s assertions, many employers want to know — “Do I have to use it?”Continue reading this entry
Remember to Get Key Employment-Related Agreements Signed
Posted in Human Resources/ Employer MattersIn order to protect their valuable business assets, many employers require key employees to sign employment-related agreements such as non-compete, non-disclosure, and non-solicitation agreements. When properly drafted, these agreements can be extremely helpful in protecting an employer’s legitimate business interests such as confidential and propriety information and an employer’s goodwill with its customers. However, despite the expenditure of significant time and money to craft these agreements, for one reason or another, the agreements do not always end up getting signed. Maybe the agreement gets missed in the stack of documents reviewed during the orientation process. Or maybe the high-level employee intentionally decides not to sign the agreement to keep his or her options open. Without a signed non-compete agreement, stopping that key employee from working for a direct competitor gets that much harder.Continue reading this entry
An “Honest Belief” Remains a Viable Defense Option
Posted in Discipline and TerminationTermination and other adverse employment actions often give rise to claims of intentional discrimination and other litigation. In many cases, the issues will boil down to an assertion that the facts supporting the employer’s case are not accurate. Whether or not the employer was right on the facts, it still may have a defense based on the “honest belief” rule, which focuses not on the accuracy of the underlying facts asserted by an employer, but rather on what a decision-maker honestly believed the facts to be and whether that belief provides a legitimate, non-discriminatory reason for an employment decision.Continue reading this entry
Does “I Quit” Really Mean I Need FMLA Leave?
Posted in Family and Medical Leave ActImagine you have an employee who is out three weeks on a medical leave protected by the FMLA. The employee suffers from a serious mental condition (or some other chronic condition), which has required her to take FMLA protected leaves in the past. The employee is medically released to return to work without restrictions and returns to work. Then, on her first day back at work, she unexpectedly leaves work early. The next day she says she is not returning to work and submits a written resignation to that effect. However, three days later the employee wants to return to work claiming the resignation was a mistake, and she really needed additional FMLA leave. Do you have to reinstate the employee or face potential liability under the FMLA? In other words, can an employer rely on what the employee says (“I want to quit”) or must it investigate whether the employee wants and/or is eligible for additional FMLA protected leave?Continue reading this entry
Do You Know the Seven Factors That Comprise “Just Cause”?
Posted in Human Resources/ Employer Matters; Labor RelationsThe “just cause” standard has long been a cornerstone of traditional labor law (under many collective bargaining agreements, employees generally cannot be discharged except with “just cause”). However, the standard also has important implications outside of unionized environments that might warrant consideration even with disciplinary decisions affecting at-will employees.Continue reading this entry