Pre-Employment Testing for Marijuana?

In May 2019, Section 8-107 of title 8 of the NYC admin code was amended to make it unlawful for an employer and others to test for marijuana or THC as a condition of employment.  This law becomes effective May 10, 2020.  The NYC Commission on Human Rights is promulgating rules for the implementation of this law. There was a public hearing on Jan. 9, 2020 concerning potential exceptions to the general prohibition on pre-employment testing to which written testimony by interested parties was submitted.  …

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Virtual Big Brother: Monitoring Employees

Data is everywhere. We’re being tracked in the car, in the grocery store, even when we’re walking the dog. As I write this, I’m being monitored as well, through employee monitoring administered by my firm’s I.T. department. This may help to prevent cyber-crime, as well as assisting with productive, employee locating and resources usage. Reportedly, effective employee monitoring systems can help productivity and therefore benefit the bottom line. However, it can also create problems with the employment environment. This is an important balance for all …

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Turning up the Heat on Employers

It’s hot outside. The rising temperature has implications for employers, specifically the responsibility to monitor employee health. The ramifications of heat related employment issues span from loss of productivity and morale issues to injuries and even death. From a strict legal standpoint, OSHA has regulations governing occupational heat exposure. Moreover, there are risk management tools to consider for all employees exposed to extreme heat.

Reportedly, employees at risk of heat related health concerns are those exposed to extreme heat both indoors and outdoors, those …

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Documentation Saves the Day in Retaliation Suit

When facing a wrongful termination/retaliation claim, the organization and detail of an employer’s files will be put to the test. In a recent decision, an employer maintained well-documented, detailed files which helped to prove that a termination was not retaliatory. In Lacey v. Norac, Inc., the Eighth Circuit Court of Appeals affirmed summary judgment to an employer in a retaliation claim under Title VII based on allegations that the employee was terminated for refusing to sign an affidavit on the employer’s behalf. 

The plaintiff …

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A New Trend: Emoji Lawsuits ;)

Attorneys know with a certainty that words matter in the law. But what about emojis? Reportedly, more emojis are showing up in court cases throughout the US. Thus, attorneys are left to argue about the interpretation of those characters and, apparently, courts are struggling to handle the nuances.

The number of reported cases with emojis as evidence in the United States reportedly increased each year since 2017 , and is at nearly 50 so far in the first half of 2019. However, there isn’t …

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Obesity ≠ Protected Class

Making fun of a co-worker’s weight may be rude, but is it illegal? A New Jersey court recently addressed claims of disability discrimination and hostile work environment by an employee complaining of comments made by co-workers about his weight.

The employee worked as a bus driver over a 10-year period. During that time the employee weighed between 500 and 600 pounds. While he spent most of his time at work driving a bus, or performing related bus inspection duties, he also spent time in the …

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Ambiguity in Arb. Agreement Cannot Be Construed as Consent to Class Arbitration

In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court held that an ambiguous arbitration agreement cannot provide the necessary contractual basis for compelling class arbitration under the Federal Arbitration Act. This decision reverses the Ninth Circuit’s decision that permitted an employee’s data breach class arbitration to proceed.

Lamps Plus built on the Supreme Court’s 2010 decision in Stolt-Nielsen S. A. et al. v. Animalfeeds International Corp, in which the Supreme Court ruled that an arbitration agreement, silent on the issue of class arbitration, was …

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The Importance of Employment Job Descriptions

Employment job descriptions serve many purposes: to attract talented applicants, to inform employees of expectations. In addition, job descriptions are often critical in disputes between employers and employees. A federal appellate court recently ruled on a case where the words in job description helped bolster the employer’s defense.

The case involved a correctional officer who was injured during an altercation with an inmate. The injury required shoulder surgery and resulted in the employee returning to work in a light duty capacity. Thereafter the correctional officer …

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When Workplace Gossip is Grounds for Title VII Claim

In less than 18 months of employment, Evangeline Parker received six promotions.  Then rumors circulated that Parker’s precipitous rise through the ranks “must” have been because she was sleeping with her boss.  When Parker complained about the rumors and confronted the employee who allegedly started the rumors, she was terminated.  Reversing the district court’s dismissal of the lawsuit, the Fourth Circuit Court of Appeals, in Parker v. Reema Consulting Services, held that such rumors could form the basis of a sexual harassment claim in …

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Sexual Assault in Nursing Homes

On December 29, 2018, a 29-year-old woman in a vegetative and uncommunicative state gave birth to a baby boy.  The woman had been in a vegetative state for at least a decade after a near-drowning incident which caused brain drainage.  She had been a longtime resident of a healthcare facility in Phoenix.  The employees of the nursing home only became aware that the resident was pregnant when she was found moaning and it was discovered that the resident was in active labor.  Several news reports …

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