Category Archives: Employment Practices Liability

Lactation = Medical Condition under Federal Law

There are several federal laws with protections for pregnant employees and those employees experiencing complications from birth. Depending on the circumstances, FMLA, ADA and/or the Pregnancy Discrimination Act (“PDA”) may be triggered. In Hicks v. Tuscaloosa, the Eleventh Circuit ruled on a case involving an employee’s post-pregnancy lactation and need to nurse her newborn.

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FMLA Causation Standard Slides Down

Navigating the waters of employee leave is tricky business for employers. At the federal level, FMLA requires "covered" employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. The question of the appropriate causation standard that must be proven in an FMLA claim is not unanimous among the Circuit Courts. In Woods v. START Treatment & Recovery Centers, the Second Circuit put its stake in the ground.

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High Times: Accommodating Marijuana Use at Work

Marijuana laws are evolving in the US. Marijuana is a Schedule 1 drug under the Controlled Substances Act, and has no accepted medical use under federal law. However, 29 states and Washington, D.C. have passed laws that decriminalized medical or recreational marijuana use. Nonetheless, many employers have longstanding zero tolerance drug use policies. The question remains, how should employers reconcile their internal policies with the laws requiring employers to accommodate employees with certain medical conditions? The answer is hazy.

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Loser Pays: Risks of Civil Rights Claims

Federal civil rights actions are somewhat unique in that they allow the prevailing party to be granted “reasonable attorney’s fees.” An employer on the wrong side of a decision or verdict could leave it paying (a) damages; (b) its attorney's fees and (c) its adversary's attorney's fees. But what are “reasonable” attorney fees?  In Sommerfield v. City of Chicago, the Seventh Circuit shed some light on this important question.

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Accommodation for the Mark of the Beast

Most employers know of the requirement to adjust any aspect of the working environment which may conflict with an employee’s religious beliefs. At the federal level, under Title VII, an employer must make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.  But what are religious accommodations? What proof may an employer request in order to establish that the employee is being sincere? The 4th Circuit recently examined a religious accommodation scenario that ended in an award of nearly $600,000 in damages and other benefits to the employee.

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The ADA and the Internet

Most employers and business owners are generally aware of the requirements set forth by the ADA to accommodate accessibility to buildings and facilities by individuals with disabilities. These guidelines may impact the type of material used or the design of entrances, doorways and the like. However, how many business owners understand that these regulations also govern the Internet? The advancement of technology continues to make it easier for consumers to purchase goods and services without venturing outside. While websites allow companies to market to more consumers, the use of Internet services also expose employers and business owners to liability of the site isn't compliant with the ADA. The Southern District of Florida addressed this issue in Gil v. Winn-Dixie Stores, Inc.

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Workplace Violence: How to Maintain a Safe Work Environment

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many laws that protect employment interests. Reportedly, every year, approximately 2 million Americans fall victim to workplace violence. According to OSHA and the Bureau of Labor Statistics Census of Fatal Occupational Injuries, homicide is the fourth highest cause of workplace fatalities in the United States. The scope of what and how workplace violence may occur is broad. It can involve conduct between employees, employees and customers, and employees and non-employees (e.g. a spouse). Given the serious nature and risk associated with workplace violence incidents, it is imperative that employers take steps to prevent such acts from occurring.

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Heavy Scrutiny of Employment Agreements

Agreements within employment contracts and employee handbooks continue to be subject to strict scrutiny by the NLRB. In a recent decision, the Sixth Circuit enforced an NLRB Order finding multiple NLRA violations for prohibiting employees from engaging in “collective bargaining.” The issue should be of interest to all employers given the common misconception that the NLRA only applies to unionized employers.

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Isolated Racial Slur Triggers Hostile Work Environment Claim

One strike, you’re out? The isolated use of a racial slur may be enough to establish a hostile work environment claim. While the Second Circuit did not squarely answer the question in the affirmative, in Daniel v. T & M Prot. Res., LLC, the court allowed the claim to proceed. To establish a hostile work environment claim, a plaintiff must show: that the workplace was permeated with discriminatory intimidation that was sufficiently severe to alter the conditions of the work environment and that a specific basis exists for imputing the conduct that created the hostile environment to the employer. So what does severe or pervasive mean in this context? Can an isolated incident rise to the level of pervasive?

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Hiring Decisions and the NFL Draft

You can learn a lot about reputational harm and hiring decisions from the NFL. A college football player potentially lost millions recently as his draft stock tumbled in the wake of a rape investigation weeks before the NFL Draft. Granted, the player was selected in the first round, but at a lower pick than originally projected. Reportedly, numerous teams called the player within 48-hours of the disclosure of the investigation to hear his version of events. Some teams reportedly administered a polygraph test to the player. But what's enough? What steps must an employer take to investigate potential employees? A related question: what's the potential reputational cost to the employer? These are critical employment decisions.

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