Labor & Employment Law Update

On December 3, the Federal Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin) affirmed dismissal of a failure to accommodate claim brought by an employee bumped from a job assignment that accommodated his disability after his employer opened that assignment to seniority-based bidding pursuant to the terms of the collective bargaining agreement (CBA).

After a series of injuries and several extended leaves of absence, the employee was released to return to work with permanent restrictions that prevented him from performing many of the physically demanding ...

On December 1, 2015, in conjunction with World AIDS Day, the EEOC issued two new guidance documents addressing the legal rights available to employees with HIV/AIDS under the Americans with Disabilities Act (“ADA”).

While these documents specifically reference HIV and AIDS, the reality is that this new guidance has tremendous value to human resources professionals and other management decision-makers who may be faced with accommodation requests based on virtually any medical condition. Moreover, although the guidance is not specifically directed to employers, again the ...

Medical marijuana (MMJ) is now permitted in 23 states and Washington D.C. Out of those 23 states four of them permit recreational use. Though it remains illegal on the Federal level, the U.S. Department of Justice recently announced the release of over 6,000 inmates convicted of nonviolent drug charges. This begs the question – are you prepared for medical cannabis in the workplace?

Nondiscrimination Policies

Most states with MMJ prohibit discrimination on the basis of a worker or applicant being a registered patient. However, employers should also carefully consider that a ...

In June 2014, the Supreme Court issued a decision impacting “fair share” provisions in public sector collective bargaining agreements. By a 5-4 vote, the justices ruled in Harris v. Quinn that home health care workers in Illinois could not be compelled to financially support a union they did not want to join. Writing for the majority, Justice Samuel Alito noted that the “primary purpose of permitting unions to collect fees is to ‘prevent nonmembers from free-riding on the unions’ efforts, sharing the employment benefits obtained by the union’s collective ...

A couple of months ago, we discussed the National Labor Relations Board’s (NLRB) startling decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), in which it determined that a non-union company shared joint employer liability, under the National Labor Relations Act (NLRA), with a labor contractor at one of its recycling plants. The Board held that two or more entities are joint employers if each one possesses sufficient control over employee’s essential terms and conditions of employment. Employers were in an uproar over the decision ...

A recent 7^th Circuit case, Hooper v. Proctor Health Care, Inc., Case No. 14-2344 (7^th Cir. 2015), serves as a reminder that a plaintiff cannot state a failure to accommodate claim under the Americans with Disabilities Act (“ADA”) if the plaintiff’s physical or mental limitations do not affect the plaintiff’s ability to perform essential job functions.

In Hooper, an employee diagnosed with bi-polar disorder prior to being hired by Proctor, requested time off after an incident that took place outside of work. He disclosed his diagnosis to the Director of Human ...

Can I regulate and/or discipline an employee for using alcohol outside of work?

While you might think the answer is pretty straightforward – it is NOT.  Attorneys often respond by saying, “it depends.”

If an employee’s use of alcohol (or any other legal product) outside of work is negatively impacting their performance or resulting in them coming to work impaired, then you can issue discipline in line with your policies and procedures for that conduct.

What if it is not impacting their performance and they are not coming to work drunk?

Again the answer is the dreaded – “it ...

The Seventh Circuit recently took another shot at the increasingly rebuked McDonnell Douglas framework for determining employment discrimination claims. Seasoned employment attorneys can recite the McDonnell Douglas burden-shifting analysis in their sleep; in fact, it’s likely been the topic of some sleep-talking rants for some. Under the analysis, established by the U.S. Supreme Court in 1973, if a plaintiff lacks “direct” or “smoking gun” evidence of discrimination, which they usually do, their claim may still survive if they show that (1) they are a ...

Last week a Federal District Court ruled a disgruntled former employee could proceed with her interference and retaliation claims under the FMLA even though she never actually took any FMLA-qualifying leave. The case serves as a reminder of just how easily an employee triggers the statute’s broad protections.

The former employee submitted completed FMLA paperwork relating to a chronic condition and the employer approved her request to take intermittent leave, as needed, in the future. She never actually took leave under the statute and, in fact, she did not even ask for any ...

On the final day of September, the EEOC filed a sex discrimination lawsuit against the Coca Cola Bottling Company of Mobile, Alabama. The EEOC frequently files lawsuits, but this lawsuit had an additional claim not often seen, which may be a wake-up call to many employers.

That claim was based on the bottling company’s alleged failure to preserve employment records—specifically, employment applications.

Federal regulations require the retention of employment applications “for a period of one year from the date of the making of the record or the personnel action involved ...