ERISA’s Anti-Retaliation Clause Protects Unsolicited, Informal Internal Complaints

Randi Klein Hyatt
Randi Klein Hyatt
09/07/2012
Section 510 of the Employee Retirement Income Security Act (ERISA) protects employees from being fired, and other adverse employment actions, because the employee has complained about benefit issues.  The courts interpreting this retaliation protection have differed, however, on what is considered a protected complaint.  The Seventh Circuit Court of Appeals, in George v. Junior Achievement of Central Indiana, Inc., No. 11-3291 (7th Cir. Sept. 4,...
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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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Circuit Split Created on ADEA and Section 1983

Darrell VanDeusen
Darrell VanDeusen
08/28/2012
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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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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New York Law Prohibits Disclosure of Employee Social Security Numbers

Eric Paltell
Eric Paltell
08/22/2012
A new law in New York State makes it illegal to require a person to disclose his or her social security number for any purpose.  The new law, which goes into effect on December 12, 2012, adds a new Section 399-ddd to the state’s General Business Law. Significantly, the prohibition on disclosure extends to “any number derived from” a person’s social security number. As a result, employers cannot require employees to disclose the last four...
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Another Facebook Case - Employee Claim of Invasion of Privacy This Time

Clifford Geiger
Clifford Geiger
08/17/2012
In Ehling v. Monmouth-Ocean Hospital Service Corp., the U.S. District Court for New Jersey permitted a former employee’s claim for invasion of privacy after a supervisor allegedly gained unauthorized access to her Facebook account to proceed for discovery. The plaintiff, a registered nurse and paramedic, alleged that her employer accessed private postings on her Facebook account in retaliation for her union activity.  A supervisor allegedly...
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Seventh Circuit Holds That Casual Comments About A Family Member’s Poor Health Are Not Sufficient To Place An Employer On Notice Under FMLA

Clifford Geiger
Clifford Geiger
08/15/2012
Donna Nicholson was a sales associate for Pulte Homes.  In April 2009, following several months in which she failed to meet sales goals and generated two customer complaints, Nicholson was placed on a performance improvement plan (PIP).   The PIP required Nicholson sell two homes in both May and June.  Nicholson’s performance did not improve.  On June 22, Nicholson’s supervisors decided to terminate her employment, because she had not made a...
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Foreman With Fixable Knee Injury Is Disabled Under The ADA Amendments Act

Randi Klein Hyatt
Randi Klein Hyatt
08/14/2012
A foreman who worked for the city of Sanford, Florida had injured his knee while working for the Navy many years prior. The city hired the individual as an equipment operator after he was cleared as physically able to perform the functions of the job. He was promoted two weeks later to the foreman position, which involved physical tasks such as standing, walking, reaching, climbing, stooping, kneeling, crawling and lifting up to 50 pounds. The...
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