Complying with the law is only the starting point when making sound and legally defensible employment decisions, such as discipline, terminations, denying accommodations, and so forth. Have you ever heard of a company that made an employment decision that technically complied with the law, but were still sued by an employee or settled a lawsuit? Do you want to rule in favor of the employee or employer if an “at-will” employee was fired after 30 years of service to the company for a minor violation of the attendance policy, even though the employee was injured on the job, has a medical condition, and a good performance record? Does your opinion change in the context of an at-will employee who was late numerous times, warned on numerous occasions, caused customer complaints, and was mediocre at best with respect job performance?Continue reading this entry
The Ability to Perform a Rare Job Task Can Be “Essential”
Posted in Americans With Disabilities ActCourt rulings continue to shape the contours of employers’ duty pursuant to the ADA to accommodate employees’ limitations. Very recently, one of the federal appellate courts issued a pro-employer ADA ruling that reinforced the fundamental notion that a person is not “qualified” if he/she cannot perform an “essential” function of the job (even with a reasonable accommodation), and developed the less-familiar notion that required job tasks can indeed be “essential” even if they are not routinely performed. The case, Knutson v. Schwan’s Home Service, Inc. (8th Cir.), provides several practical ADA teachings that are listed at the end of this article.Continue reading this entry
Health Care Providers Beware — You May Be a Governmental Contractor
Posted in Human Resources/ Employer MattersExecutive Order 11246 (Order) was first issued in September 1965 by President Johnson. Its purpose was to prohibit race, religion, color, and national origin discrimination by federal contractors and subcontractors and require them to engage in “affirmative action” to employ and advance minorities in employment. In 1967, the president amended the Order to also prohibit sex discrimination and require affirmative action by government contractors and subcontractors on behalf of women.Continue reading this entry
Asset Acquisition Comes With Unexpected FLSA Pain
Posted in Fair Labor Standards Act (FLSA)Some bargains are not as they seem. An asset-acquiring Company discovered this the hard way in Teed v. Thomas & Betts Power Solutions. In the case, at an auction, Thomas & Betts purchased the assets of a company in receivership. It knew that a judgment of $500,000 had been entered against the former company in a lawsuit under the Fair Labor Standards Act (FLSA). Therefore, it made the purchase contingent upon the express condition that it be “free and clear of all liabilities.” Under (Wisconsin) state law, that, in combination with the common law principle that an asset purchaser generally does not assume liabilities, would have protected Thomas & Betts.Continue reading this entry
AAO Finds USCIS Impermissibly Redefines Showing of Specialized Knowledge
Posted in Immigration, Nationality & Consular LawThe Administrative Appeals Office of U.S. Citizenship & Immigration Services, otherwise known as the AAO, recently reversed a finding by U.S. Citizenship & Immigration Services (USCIS) that had denied approval of an L-1B intra-company specialized knowledge employment visa for a five-year, India-based employee of the company. L-1B intra-company employment visas are approved by USCIS where the petitioning multinational U.S. company evidences that one of the company’s foreign-based employees possesses specialized knowledge. Section 214 (c)(2)(B) of the U.S. Immigration & Nationality Act defines “specialized knowledge” to be “special knowledge of the company product and its application in international markets,” or “an advanced level of knowledge of processes and procedures of the company.” The petitioning U.S. employer may establish eligibility by submitting evidence that the intended visa beneficiary and the employment position satisfy either prong of the definition. In an untitled, yet enumerated decision [case number: WAC 10-140-51163] rendered March 15, 2013, the AAO reversed USCIS’ California Service Center in denying such an L-1B visa for the petitioning company’s intended senior principal engineer. A copy of the March 15, 2013 AAO decision is available here.Continue reading this entry
Government Issues New FCPA Guidance: $12,000 Birthday Party Not the Way to Go
Posted in Human Resources/ Employer Matters; New and Recent LegislationEmployers concerned about their organizations’ FCPA compliance have a new, free resource available to them. Recently, the DOJ and the SEC published a long-awaited FCPA guidance for employers. The comprehensive guidance consists of cases, hypotheticals, interpretations, and explanations, and is designed to guide employers in designing and testing their FCPA compliance programs. The DOJ and SEC also issued a fact sheet in connection with the guidance, providing a brief overview of the types of resources available to employers in the guidance.Continue reading this entry
A Fever Over Paid Sick Leave Laws
Posted in Human Resources/ Employer MattersOn the heels of a nasty flu season, the topic of mandating paid sick leave seems more popular than ever. The battle between those who prefer their working and eating environments “sneeze-free” and those who prioritize limiting financial burdens on small businesses is a contentious one this year. Many state and local lawmakers have proposed legislation on both sides of the issue over the past few years, and this year is no different.
Handling Complaints of Harassment Made Against Non-Employees
Posted in Discrimination, Retaliation and HarassmentAs we have previously noted, employers often wonder what to do when an employee makes a harassment complaint, but the alleged harasser is not another employee. The employer cannot simply do nothing, but it also generally does not have the ability to discipline the alleged harasser as it would in the situation where another employee is the alleged perpetrator. The extent of an employer’s duty in these kinds of situations has troubled employers and their counsel for some time because, even though the EEOC had a few suggestions on the topic, the case law was unclear. A recent ruling in Summa v. Hofstra University et al., however, may provide some clarity.Continue reading this entry
Communicating With the Workforce — A Very Good Idea, But Proceed With Caution
Posted in Human Resources/ Employer MattersMost employers communicate with their workforce about a wide variety of employment related issues — personnel policies, wage and benefit issues, organizational changes, etc. These communications — whether verbal or in writing — can be an effective way of maintaining high-quality employee relations and positive employee morale. Unfortunately, they also can provide support for employee claims of all varieties if not delivered properly and carefully. In fact, employer communications to their workforce often turn up in employment disputes as evidence relevant to an employer’s alleged wrongdoing. For that reason alone, employers should follow a few basic rules when communicating with their employees about employment related matters:Continue reading this entry
Can’t Say You’re Coming in if You’re Going to Strike
Posted in Labor RelationsAs a general principle, an employer cannot discipline employees who do not report to work to participate in or support a strike against their employer, provided the strike satisfies legal requirements, such as the 10-day notice requirement that is unique to employers in the health care industry. However, a recent appellate court decision suggests that when employees are dishonest with employers about their intent to report to work in connection with strike activity, disciplinary action may be proper if the employee dishonesty implicates risks to people or property.Continue reading this entry