Obesity Not A Disability Without An Underlying Medical Cause


In June of last year, we pondered whether obesity is a mere physical characteristic or a disability protected by the Americans with Disabilities Act (ADA) as now amended by the Americans with Disabilities Act Amendments Act (ADAAA). In that inquiry, undertaken in the context of a pending appeal of a federal court’s dismissal of a case, we noted that organizations from the American Medical Association to the American Association of Retired Persons had weighed in on the question, generally supporting the argument that morbid obesity, in and of itself, should qualify as a disability under the ADA’s now broadened definition of “disability.” Continue reading this entry

New DOL “Persuader” Rule Stimulates Exaggerated Persuader Activities by Proponents and Opposition


We will try to keep this straightforward and polemic free. We will try.

The last time there were any significant changes to the National Labor Relations Act was in 1959, when Congress passed the Landrum-Griffin bill which, among other “reforms,” imposed new reporting and disclosure obligations on unions, management, and “labor relations consultants.” One of these reporting obligations was the following: every person (e.g. “consultant”) who, on behalf of an employer agreed to conduct “persuader activities” – i.e. activities principally intended to dissuade employees from voting for a union in an election – must file a report within 30 days of the agreement. In addition, employers and consultants who enter into such agreements have to report their “transactions” annually. Apart from a brief period of time, from 1959 until now, the federal Office of Labor Management Services (OLMS) in the Department of Labor (DOL) adopted a bright line test to set standards for “persuader activities.” If the consultant had direct contact with the target employees, it was acting as a “persuader” and it had to file reports If the consultant had no direct contact with employees, it fell under the “advice” exemption and was not reportable. However, these qualifiers for “persuader activities” and “advice” have now been called into question by the OLMS and the rule, long left alone, is now changing. Continue reading this entry

From The Jaws Of Defeat, Public Unions Snatch Lucky Victory


For many years, unions representing public employees in a variety of states have continued to require employees to pay union dues even if they have an objection to certain political, lobbying, or other activities the unions engage in. However, the permissibility of such requirements looked likely to disappear via a Supreme Court ruling this term. To the chagrin of many, that likely result suddenly disappeared, and due to fortuitous circumstances, the law of the land continues to allow unions to require payments even from public employees who object to the unions’ political, lobbying, and other activities. Continue reading this entry

More On The New Rules For White-Collar Exemptions: Strategies To Consider


Last week, we highlighted the Department of Labor’s (DOL) new proposed amendments to the “white-collar” exemption regulations. As the proposed rules move closer to becoming final this summer, with an effective date 60 days later, we take the opportunity to explain further what these new regulations will mean for employers.

As we suggest in greater detail below, employers would be wise to take several steps before the new regulations become effective, including auditing payroll records, reviewing timekeeping systems, and preparing to discuss changes with employees. Continue reading this entry

Lessons from the Supreme Court: Do Not Settle for Average, Keep Exceptional Time Records


As we have reported several times before, much litigation has been directed at exposing and litigating the uncertainties posed by the Fair Labor Standards Act (FLSA) in the area of donning (i.e., putting on) and doffing (i.e., taking off) personal protective equipment (PPE). The Supreme Court has recently entered the fray, and in its recent decision approving the use of statistical information to establish the requirements for class certification, the court has also underlined the importance of keeping good time records whenever possible. Continue reading this entry