“Laid Off” and “Terminated” are Valid Escalator Positions Under USERRA

Garrett Wozniak
Garrett Wozniak
12/07/2012
The Uniformed Services Employment and Reemployment Rights Act (USERRA) contains an “escalator principle” which requires that employers place service members returning to work into the position the service member would have had but for his or her service–the “escalator position.”  In other words, if an employee would have been a supervisor had he not been called to active duty, USERRA requires that the employee be placed into that...
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Paid Sick Leave for Maryland’s Private Sector Employees Could Be Proposed in 2013

Now that flu season is upon us, employers can expect the usual uptick in employees calling out sick.  And in Maryland, while most larger employers offer paid  sick leave, many small businesses do not.  According to the Institute of Women’s Policy Research, forty percent of Maryland’s private sector workers, or nearly 820,000 employees, do not receive time off with pay for being sick. However, Maryland might soon require all employers to offer...
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Employee Tagged Partying in Facebook Photos Loses FMLA Case

Randi Klein Hyatt
Randi Klein Hyatt
11/12/2012
An employee who was terminated after captured drinking and partying in Facebook photographs failed on her claims of Family and Medical Leave Act interference and retaliation.  The Sixth Circuit affirmed that the employer was justified in its honest belief that the festival-attending employee was absent fraudulently from work.  Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697 (6th  Cir. Nov. 7, 2012). Sara Jaszczyszyn began working...
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Four More Years: What Does Obama's Reelection Mean for Employers?

With the results of the Presidential election now in, its time to answer a question I’ve heard from a number of clients today: what does President Obama’s reelection mean for employers?  The short answer: you can expect to see a lot of blog posts from us about aggressive enforcement initiatives by the NLRB, DOL, EEOC, and other enforcement agencies.  In this post, I’ll give you a high level overview of what I think we are going to see. NLRB:...
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Tenth Circuit Holds that ADA Title II Does Not Apply to Employment Claims

Darrell VanDeusen
Darrell VanDeusen
09/14/2012
There is a Circuit split regarding whether Title II of the Americans with Disabilities Act (ADA) applies to employment discrimination claims.  Compare Zimmerman v. Oregon DOJ, 170 F.3d 1169, 1182–84 (9th Cir. 1999) (does not) with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir. 1998) (does too).  In the 1990s, other Circuits generally applied Title II to employment discrimination claims without analysis. ...
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Working From Home Is Not Necessarily A Reasonable Accommodation

Darrell VanDeusen
Darrell VanDeusen
09/14/2012
A federal district court in Michigan has granted summary judgment to an employer that denied an employee’s request to work at home because of her irritable bowel syndrome. EEOC v. Ford Motor Co., 2012 U.S. Dist. LEXIS 128200 (E.D. Mich. Sept. 10, 2012). This case was brought under the Americans with Disabilities Amendments Act (ADAAA), which significantly expanded the scope of protections for disabled. Even so, the decision shows that the law still...
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Rotating Shift Requirement is Essential Function of Job

Darrell VanDeusen
Darrell VanDeusen
09/05/2012
The Americans with Disabilities Act (ADA) requires that an employer provide a reasonable accommodation (without undue hardship) to a qualified individual with a disability to enable her to perform the essential functions of the job.  An employer need not – and should not – eliminate an essential function of a job for a disabled employee.  To do so turns the ADA on its head, with the employer basically saying “that’s ok, we don’t expect as...
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Employee Criticized for “Excessive Absences” May Have An FMLA Retaliation Claim

Frank Kollman
Frank Kollman
08/30/2012
A federal appeals court in Donnelly v. Greenburgh Central School District No. 7, No. 11-2448 (2d Cir., August 10, 2012), is permitting a teacher to proceed with his FMLA retaliation claim because the school district referred, in part, to his FMLA absences to lower his overall evaluation.  The lower evaluation was then used to deny the teacher tenure. It is important to remember that courts treat FMLA absences as “off-base” for any adverse...
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Appellate Court Rules Wellness Program Permitted Under ADA

Randi Klein Hyatt
Randi Klein Hyatt
08/27/2012
The American with Disabilities Act (ADA) generally prohibits employers from asking disability-related questions to employees or applicants or requiring them to submit to a medical examination, unless the examination or questions are “job-related and consistent with business necessity.”  42 U.S.C. § 12112(d)(4)(A).  The statute’s limits on disability-related inquiries can create difficulties for employers wishing to implement a wellness...
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Telling an Employee to Attend Psychological Counseling May Violate the ADA

Darrell VanDeusen
Darrell VanDeusen
08/24/2012
Emily Kroll was working as an EMT for White Lake Ambulance (WLA) when her supervisor began to get reports from employees about concerns over Kroll’s well being. The supervisor also  received a complaint that Kroll had screamed at a “male acquaintance” on the phone while driving a vehicle with a patient in emergency status. The supervisor told Kroll to attend counseling if she wanted to continue working at WLA.  She said “no” and left the...
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