NLRB Places New Restrictions on Social Media Policies

Eric Paltell
Eric Paltell
09/14/2012
As readers of this blog know, the National Labor Relations Board’s Acting General Counsel has had employer social media policies in his proverbial crosshairs for the past 18 months. Over that time period, the Acting General Counsel issued three Reports outlining his views on the legality of employer social media policies, generally finding them to be unlawful when the policy used generalized language to prohibit employees from making critical...
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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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What Did You Learn in School Today Johnny? Oh, That’s Right, There’s No School...

Darrell VanDeusen
Darrell VanDeusen
09/12/2012
So, school is out for children in the Chicago Public Schools (CPS) - the nation’s third largest school district - and it looks like it will be for the foreseeable future. The Chicago Teachers Union continues to strike and has stated that, despite the offer of a huge 16% pay increase over four years, the parties are far apart in reaching a contract. It has been 25 years since there was a teacher strike in Chicago. Even more interesting, the union...
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Equal Employment Opportunity Commission Will Target Hiring and Recruitment Discrimination

Randi Klein Hyatt
Randi Klein Hyatt
09/10/2012
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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In Turnabout, Seventh Circuit Says Reassignment Is ADA Reasonable Accommodation

Darrell VanDeusen
Darrell VanDeusen
09/10/2012
For the past 12 years, the Seventh Circuit has held that the ADA does not require an employer to reassign employees to a vacant position as a reasonable accommodation.  The court has now retreated from that position in EEOC v. United Airlines, Inc., No. 11-1774 (7th Cir.  Sept. 7, 2012).  Back in 2000, the court ruled in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000) that, while the ADA mentions reassignment as a reasonable accommodation,...
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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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