Author Archives: Dove Burns

Employer Guidance on Mental Health Disorders

According to the National Alliance for Mental Illness, one in five US adults experiences mental illness in a given year. In a recent article authored by PL Matters contributor Dove A.E. Burns, the “prevalence of these disorders has a significant impact upon the workplace and upon employers and their accommodation policies and procedures.” The New York Law Journal article evaluates the EEOC’s publication titled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights.” The article also considers what the EEOC's guidance means for employers navigating the ADA landscape.

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Blown Deadline = $850,000

Ugh…deadlines. Many classes of professionals are bound by deadlines. Attorneys are no different. Pleading requirements, discovery responses, motions, hearings and other proceedings must all be calendared to ensure that an attorney meets all deadlines. In fact, an easy path to malpractice is to miss a deadline. A recent New Jersey verdict highlights the importance of complying with deadlines and maintaining clear and open communication.

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Bathroom (Unpaid) Break: FLSA Foul Up

A dispute over unpaid bathroom break time at the office has resulted in an employer flushing away some $1.75 million as a result of violating the FLSA. The case arose when the Labor Department filed suit against a publisher after discovering that its employees were not earning the $7.25 hourly minimum wage during “personal breaks.” Pursuant to the employer’s policy, employees were required to clock out while using the bathroom, getting a drink or similar breaks.

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Religious Objectors: Employer’s Duty to Make Religious Accommodations

Kentucky County Clerk Kim Davis was recently jailed due to her refusal to issue marriage licenses to same sex couples. In other news, a flight attendant refused to serve alcohol due to her religious beliefs. The public reaction to both situations was intense and the debate well-publicized. These events also highlight a new wave of confusion regarding the requirements facing employers with respect to religious accommodations. The answer for employers can differ widely depending upon the industry, jurisdiction, legislation and the specific interpretation of the laws at issue. Some states have enacted so-called religious freedom statutes and thus religious objectors have significant protections. Read on for tips to employers.

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Virginia News Tragedy: Prevention & Readiness for Workplace Violence

Reportedly, more than 1,700,000 workers are injured annually as a result of workplace violence. We were recently reminded that disgruntled employees can be deadly. On August 26th, Vester Lee Flanagan, II murdered two of his former colleagues during a live news segment before taking his own life. This tragedy provides an opportune backdrop for employers to reassess preventative measures in place and disaster readiness in order to minimize the likelihood and impact of violence in the workplace.

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Is Obesity a Disability?

A case currently pending before the Eighth Circuit will address whether ADA protections should extend to obese workers. With more than 2/3 of the US adult population considered overweight, recognition of obesity as a disability under the ADA - defined as physical or mental impairment that substantially limits major life activities - will result in accommodations and protections in unprecedented numbers.

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Employers: Adapt to Obergefell

Employers must adapt to Obergefell v. Hodges. Prior to the Supreme Court’s June 26, 2015 decision, many states did not require employers to recognize and provide benefits for married same-sex couples. Only 36 states and Washington D.C. legalized same-sex marriage. Now, the Supreme Court determined that the 14th Amendment requires states to license same-sex marriages and to recognize lawfully licensed same-sex marriages performed out-of-state. In light of this holding, employers must ensure that their policies, procedures and the benefits comport with federal law.

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Attorney Lawsuit over Overtime Pay

Professionals often require additional assistance handling time-consuming, but routine, tasks. This is particularly apparent in complex litigation that involves voluminous discovery and document review. Not surprisingly, document review can quickly become one of the more labor-intensive and expensive stages of the case. In order to meet this challenge, many firms will hire temporary attorneys to review the discovery for privilege and scope. Before doing so, query whether these firms consider the overtime implications of the FLSA.

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Is a Single Threat Enough to Trigger Liability For Retaliation?

Retaliation claims account for almost half of all EEOC claims filed nationwide. The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.

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What Constitutes Harassment? Impact of New Law

Retaliation and harassment are the most commonly filed employment law claims nationwide. After the Fourth Circuit’s recent decision in Boyer-Liberto v. Fountainbleau Corp., No. 13-1473 (4th Cir. May 7, 2015) lawsuits alleging hostile work environment and harassment will only be more difficult for employers to dispose of. The Fourth Circuit held that a single instance of harassment may create an actionable hostile work environment claim, and that an employee can be protected from retaliation when complaining about harassment, even if the purported harassment is ultimately not severe enough to create a hostile work environment.

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