Labor & Employment Law Update

A few years ago, courts recognized that corporations have First Amendment rights to speech.  E.g. Citizens United v. Federal Elections Commission (2010).  Recently, a federal court deemed that a minority-owned contractor corporation – a legal entity, not a person – is African American for purposes of anti-discrimination in contracting law.  Is recognizing a corporation’s “race” just a logical “next step” or does this “race” attribute open up unworkable and unforeseen consequences?

Federal laws prohibit discrimination in contracting based on race ...

The Seventh Circuit Appellate Court’s decision last week in Kauffman v. Petersen Health Care VII, LLC, makes clear that the time an employee spends on a given job duty is critically important when it comes to reasonable accommodation requests under the Americans with Disabilities Act (ADA).  The Kauffman case also reinforces an important lesson on a reasonable accommodation pitfall that employers must absolutely avoid.

The employee, Debra Kauffman, was a hairdresser at a nursing home, and one of her duties in that role was to push wheelchair-bound residents to and from the ...

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it has filed suit against a second employer alleging the employer’s wellness program is in violation of the Americans with Disabilities Act (ADA).  The EEOC’s first lawsuit of this kind was filed a couple months ago alleging the employer’s wellness program was not voluntary and the employee was discharged for failing to participate in the program.  The ADA concern is that wellness programs often require “medical examinations” and involve “disability-related ...

Beginning January 2015, employers will be subject to extensive ACA reporting requirements. Although submission of the data for 2015 will not take place until early 2016, employers and insurers need to start capturing the required data in January and should ensure that all the proper data can be captured and tracked prior to the beginning of the year.

The rules require extensive data reporting and are intended to help the IRS enforce various tax provisions of the ACA, including the employer and individual mandates.  Proposed instructions for reporting and draft forms were ...

Recently, OSHA announced that it would be lowering the burden of proof for whistleblower claim investigations from “reasonable cause” to a mere “preponderance of the evidence.” As a result, employees need only show that, more likely than not, there was an adverse employment action as a result of an OSHA complaint, rather than showing that the adverse employment action was the direct result of the OSHA complaint.

At the same time, OSHA is seeking to hire 20% more full-time employees in its whistleblower programs and will be hiring in each region an Assistant Regional ...

A judge from the Northern District of Illinois recently ruled that an employer’s policy requiring employees to notify management before seeking medical treatment violates the Illinois Workers’ Compensation Act (IWCA). The employee filed suit alleging he was fired in retaliation for exercising his rights under the IWCA. The employer explained that the employee was terminated for failing to adhere to an important workplace policy that was in place for the safety of its employees.

The employer’s policy required employees to immediately report workplace injuries and ...

Arizona:  In July, the Attorney General confirmed that the AZ smoking restrictions do not apply to e-cigs.

California: Employers, get ready to start having to offer paid sick leave beginning July 1, 2015 if you aren’t already!  See our September 16, 2014 post for more details.  Also, beginning January 1, 2015, unpaid interns and volunteers are getting the same nondiscrimination and harassment treatment as paid workers, including non-harassment training.

Connecticut:  Starting October 1, 2014, workers may obtain certificates of rehabilitation related to their ...

We often hear the above statement when providing advice on workers’ compensation and employment law to clients and prospective clients.   The focus then always involves exposure for workers’ compensation retaliatory discharge lawsuits.  The litigation costs and risks of paying the former employee for wrongful discharge warrant obtaining legal advice. Plaintiff attorneys confirm to me that the burden of proving such a case is still a challenge to them.

Notably, an Illinois appellate court has just reduced the incentive to such litigation for plaintiffs in Dale v South ...

One week before an election to decertify Teamsters Local 734 as the bargaining representative of drivers at LaBriola Baking Co., the company held a mandatory meeting for its drivers to make a final push against continued union representation.  At the meeting, the company’s Chief Operating Officer spoke about the upcoming election.  The COO said in English, “If you choose union representation, we believe the union will push you toward a strike.  Should this occur, we will exercise our legal right to hire replacement workers for the drivers who strike.”  Roughly 80 percent of the ...

The ADA does not protect employees who are under the influence of illegal drugs. However, the ADA provides conflicting messages when drug tests include the testing for prescription drugs and how to respond if an employee in a safety sensitive position tests positive. This is further complicated by the blurring of what is an illegal drug in many states, including Illinois, which have legalized medical marijuana.

The ADA prohibits employers from inquiring whether an individual has a disability or requiring an individual to take a medical exam that would disclose a disability ...