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Four More Years: What Does Obama's Reelection Mean for Employers?

Kollman & Saucier
Kollman & Saucier
11/07/2012
Agency Activity, Disability & Leave, Employment Discrimination, Labor Law, Legislative Developments, Wage & Hour, Workplace Safety
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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Court Rules Baltimore County Pension Plan Discriminates Based on Age

Kollman & Saucier
Kollman & Saucier
10/26/2012
Employee Benefits, Employment Discrimination, Public Sector Employment Law
A federal district court has ruled that Baltimore County violated the Age Discrimination in Employment Act (“ADEA”) when it required older employees to contribute more to their pension than younger employees.  EEOC v. Baltimore County, D. Md. No. 07-2500 (10/17/12). The decision, which will most likely be appealed by the County, is the latest ruling in a multi-year lawsuit which has already been before the United States Court of Appeals for the...
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Buttocks Slap Not Harassment; Complaint Not Protected Activity; Termination Not Retaliation. Really.

Darrell VanDeusen
Darrell VanDeusen
09/27/2012
Employment Discrimination, Retaliation, Sexual Harassment
It is football season, so apparently it is time to revisit the issue of the workplace buttocks slap.  Justice Scalia noted in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), when discussing whether an employee might find certain workplace behavior “objectionably offensive,” that a professional football player would not be embarrassed or harassed if his coach smacks him on the buttocks as he heads out onto the field.  This same...
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90 Day Right to Sue Requirement Runs from Time Lawyer Got Notice, First Circuit Says

Darrell VanDeusen
Darrell VanDeusen
09/26/2012
Employment Discrimination, Litigation
It’s pretty well recognized that a plaintiff needs to file a lawsuit within 90 days of her receipt of a notice of right to sue from the EEOC.  The timing requirement applies even if the recipient was not the plaintiff, but the plaintiff’s lawyer, according to the First Circuit.   Affirming summary judgment to Fondo del Seguro del Estado, Puerto Rico’s State Insurance Fund, the court held that Advilda Loubriel did not present sufficient...
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You Can’t Have Your Sex Harassment Cake and Eat It Too …

Kollman & Saucier
Kollman & Saucier
09/21/2012
Employment Discrimination, Sexual Harassment
In order for a plaintiff in a sex harassment case to prevail on a claim of hostile work environment sex harassment, the employee must show that the offensive behavior was unwelcome.  On September 17, 2012, a federal court in Illinois relied upon this principle of law to reject a harassment claim brought by a U.S. Department of Agriculture employee.   Jacober v. Dept. of Agriculture, No. 3:10-cv-00422 (S.D. Ill. 2012).  In Jacober, an employee...
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Tenth Circuit Holds that ADA Title II Does Not Apply to Employment Claims

Darrell VanDeusen
Darrell VanDeusen
09/14/2012
Disability & Leave, Employment Discrimination
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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Equal Employment Opportunity Commission Will Target Hiring and Recruitment Discrimination

Kollman & Saucier
Kollman & Saucier
09/10/2012
Agency Activity, Employment Discrimination
On September 4, 2012, the EEOC released its Draft Strategic Enforcement Plan for 2012-2016, and identified numerous high priority agenda items for the Plan.  Chasing systemic recruiting and hiring discrimination will be the agency’s first priority, and specifically identified pre-employment tests, background screens and date of birth screens in online applications as employment practices of particular interest. Its second priority is protecting...
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Rotating Shift Requirement is Essential Function of Job

Darrell VanDeusen
Darrell VanDeusen
09/05/2012
Disability & Leave, Employment Discrimination
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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Circuit Split Created on ADEA and Section 1983

Darrell VanDeusen
Darrell VanDeusen
08/28/2012
Employment Discrimination
The Seventh Circuit has split from all of the other federal appellate courts that have addressed the issue to hold that the Age Discrimination in Employment Act (ADEA) does not preclude the bringing of a Constitutional equal protection claim under 42 U.S.C. § 1983. Levin v Madigan, 2012 U.S. App. LEXIS 17291 (7th Cir. August 17, 2012). Every other appellate court has followed the Fourth Circuit’s decision in Zombro v. Baltimore City Police Dept.,...
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Telling an Employee to Attend Psychological Counseling May Violate the ADA

Darrell VanDeusen
Darrell VanDeusen
08/24/2012
Disability & Leave, Employment Discrimination
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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