You Posted My Medical Information on Facebook?!?!?


The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals and ensures equal opportunity for persons with disabilities in employment. An employer is required to make a reasonable accommodation to an employee’s known disability if it would not impose an undue hardship on the employer’s business. In the course of exploring an employee’s limitations to consider possible accommodations, employers routinely obtain employees’ medical information as part of the interactive process the ADA requires. However, the ADA also mandates that employers keep employee medical information confidential and protect it from disclosure. Specifically, it requires that any information relating to a medical condition of an employee obtained through employment related medical examination and inquiries must be treated as a confidential medical record. A recent case illustrates the challenges this obligation can create (and the baffling things employees sometimes do…). Continue reading this entry

Gotta Pass the Smell Test, Too


A Florida court recently let a claim proceed under the Americans with Disabilities Act (“ADA”), even though the employee had been terminated for a positive drug test and the ADA has a specific exclusion for current drug users. In legal terms, the court denied the employer’s initial motion to try and have the case dismissed – so this is not a decision about whether the employee’s claim wins – but simply a decision concluding that the former employee has presented a possible claim. However, in more practical terms, the employer’s actions may not have passed the court’s smell test. Continue reading this entry

But We Cut a Settlement and They Agreed to It!?!


As we have previously noted, employers are increasingly resorting to arbitration agreements, waivers and releases  and other strategies in an attempt to limit liability in employment matters and reduce or eliminate the risk and cost of litigation. With the explosion of litigation being brought under the Fair Labor Standards Act (“FLSA”), employers may be similarly tempted to “cut deals” to eliminate and reduce the risk of an FLSA claim. Similarly, with increased attention being paid to raising the minimum wage as well as President Obama’s recent Executive Order instructing the Secretary of Labor to re-examine exemptions, employers may be tempted to cut corners by striking private deals with employees. However, the FLSA is a different animal and employers must understand that unlike most other employment laws, the ability to obtain valid waivers and releases are severely limited under this law. Continue reading this entry

Breaking News: Supreme Court Rejects President’s Recess Appointments as Unconstitutional


In a long-awaited monumental opinion, the Supreme Court today held unanimously that President Obama’s purported “recess appointments” to the National Labor Relations Board in January 2012 were unconstitutional. The Court rejected the President’s arguments that he could unilaterally determine that the Senate was in recess, even when the Senate was holding one-minute “pro forma sessions” for the express purpose of avoiding a recess. The decision immediately calls into question the validity of hundreds of decisions issued by the unconstitutionally appointed Board members and raises serious doubt as to the future of the recess appointment.

Though the Court unanimously concluded that the appointments were unconstitutional, the nine justices were divided in how they reached that conclusion. Justice Breyer, writing for a five-justice majority, rejected the sweeping conclusions of the D.C. Circuit that we covered back in 2013. Instead, the majority concluded (1) that the President has the authority to fill vacancies that arise prior to the recess, and (2) that the recess appointment clause applies to both “intrasession” and “intersession” recesses. However, the majority concluded more narrowly that the Senate has the power to decide when it is in session and when it is in recess. Because the Senate claimed that it was not in recess when President Obama made the appointments in January 2012, there was no recess and no right to fill the vacancies using the recess appointment power. Continue reading this entry

Using Non-Competes When Greater Employee Responsibility = Greater Protectable Interest


Many employers require new hires to sign non-compete agreements and we have advised previously about best practices for employers to refresh their non-compete terms on a regular basis. A recent decision by a Maryland federal court illustrates a terrific, practical application of one practice to tighten up restrictions on employees after their employment has begun. Though not applicable in all non-complete situations, the case is certainly helpful in the circumstance of a pre-employment non-compete and a second non-compete entered into later as part of an employee incentive compensation plan or some other development providing benefits to the employee. Continue reading this entry