healthFollowing up on my recent post, “Employer May Change Essential Functions of the Job,” I thought we’d discuss another little-mentioned aspect of essential job functions under the Americans with Disabilities Act – job functions that are rarely performed can still be essential!

As we’ve previously discussed, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. The ADA regulations define “essential function” as “a fundamental job duty of a position.” But how do you determine what are the essential functions of a particular job? According to the Equal Employment Opportunity Commission (which is the federal agency charged with enforcing the ADA) and the regulations, the following factors should be taken into account in determining whether a job function is essential: Continue Reading Rarely Performed Job Functions May Still Be “Essential” Under ADA

Gold-Rolex-Watch-3-psd86394As a company’s workforce ages, some thoughtful managers may be concerned about business continuity and planning. And it seems pretty obvious that much of that planning will depend on when certain older workers plan to retire. Or a manager may see an older worker becoming less productive, and begin thinking that the person should retire. But, asking about an employee’s retirement plans – or even requiring an employee to retire – can be very problematic. I thought it might be helpful to review the rules on retirement under the Age Discrimination in Employment Act (ADEA).

Generally, ADEA prohibits employers from forcing employees to retire because of their age. The only exception to this prohibition for private employers is certain bona fide executives or high policymakers. For those individuals, ADEA allows employers to require mandatory retirement at age 65 if the individual has been:

  • Employed in that capacity for at least two years prior to retirement; and
  • Is entitled to immediate and non-forfeitable annual retirement benefits from the employer that total at least $44,000.

Continue Reading Asking About Retirement Can Be Dangerous

healthA recent case highlighted for me (and now for you) an interesting point under the Americans with Disabilities Act (ADA) – whether essential job functions can change. As you may know, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. This means that the issue of what are the essential functions of the job is critically important.

According to the EEOC, the following factors should be taken into account in determining whether a job function is essential:

  • whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.

The EEOC also identifies the following types of evidence that can be used to establish that certain job functions are essential:

  • the employer’s judgment as to which functions are essential,
  • a written job description prepared before advertising or interviewing for a job
  • the actual work experience of present or past employees in the job,
  • the time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • the terms of a collective bargaining agreement.

Continue Reading Employer May Change Essential Functions of the Job

Burlesque 2So as an employment defense attorney, I am constantly amazed by the creative arguments put forth by plaintiffs and their attorneys. I am certain that the creators of certain laws would never, in their wildest dreams, have anticipated how they could be applied. A recent example of this can be found in Stevens v. Oval Office, LLC dba Oval Office Gentlemen’s Club.

As you may know, a recent hot topic for federal and state agencies is the misclassification of employees as independent contractors. According to the U.S. Department of Labor’s newly created webpage, misclassification hurts employees by denying them: minimum wage and overtime pay, the protection of federal and state employment laws, workers’ compensation and unemployment insurance, workplace health and safety protections, and employer-provided benefits. It also hurts non-compliant employers who may be subject to fines and unpaid taxes and wages, as well compliant employers who face unfair competition from those who reduce their costs by being non-compliant. And it hurts government agencies who do not receive the appropriate employment tax revenues. Continue Reading Exotic Dancer Improperly Fined for “Faulty Workmanship”?

JohnHancockAs an employment litigator, I have repeatedly emphasized to my clients the need to get signed agreements, acknowledgements, and authorizations from employees. From a legal standpoint, these signed documents provide legal certainty (and frequently an absolute defense) to certain employee interactions and claims. For example, if an employee contends that she was unaware of the complaint procedure for a harassment claim, waving her signed acknowledgement form for the handbook that contains that procedure in front of her is a pretty stellar defense (and quite satisfying)! It’s hard for someone to repudiate their own handwritten “John Hancock.” Continue Reading Electronic Signatures v. Handwritten Signatures

no-camera-allowed-mdThis is one of those pro-employer cases that just doesn’t make sense to me, even though I’m a die-hard management-side lawyer. It frankly strikes me as a case of punishing the victim. To explain:

In Furcron v. Mail Centers Plus, LLC, the employer provided facilities and administrative support to other businesses, including the Coca-Cola Company. A male employee with Asperger’s syndrome (which can cause awkward social mannerisms) was transferred to a mailroom (following some awkward social interactions with a female employee in his prior assignment). According to a female mailroom employee, after his transfer, the male employee frequently entered her work area and invaded her personal space. He stared at her and, as witnessed by another employee, attempted to look down the female employee’s shirt and at her underwear when she bent over. But even worse, as witnessed by yet another employee, he frequently exhibited an erect penis while staring at the female employee and would deliberately bump and rub his erection against her!!! Continue Reading Employee Violated Sexual Harassment Policy by Photographing Her Harasser’s Erection?

US-EEOC-Seal.svgIn a prior blog post, “EEOC Says Sexual Orientation Is Protected Under Title VII!!,” I noted that the Equal Employment Opportunity Commission can be sneaky in seeking to expand the scope of the laws it enforces. It will drop bombshells in the middle of otherwise pretty innocuous guidance or resource documents, as if hoping no one notices. The latest example of this is in its just-announced (December 12, 2016) publication on the rights of job applicants and employees with mental health conditions, in which the EEOC oh-so-casually expands the reach of the American with Disabilities Act! Continue Reading EEOC Expands the ADA!

Today, December 1, 2016, the Department of Labor issued a press release announcing that it had filed an appeal to the U.S. Court of Appeals for the 5th Circuit of the emergency nationwide injunction of the new overtime rule, which had been granted last week by Judge Amos Mazzant, as discussed in our November 23 blog, “Overtime Rule Will Not Take Effect on December 1.” The preliminary injunction temporarily blocked the DOL’s new rule raising the required minimum salary level for the Fair Labor Standards Act’s white-collar exemptions from the requirement to pay overtime pay. The rule was set to go into effect on December 1st.

As discussed in our May 18, 2016 E-lert, in order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question.  There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty.

The DOL’s revised rule would have doubled the salary requirement for white collar (executive, administrative and professional) employees from $23,660 per year ($455 per week) to $47,476 per year ($913 per week).  The required minimum salary for the highly compensated employees’ exemption would also have been raised from $100,000 to $134,004. These salary levels would have been subject to automatic adjustments every three years. The new rule did not change the duties test for any of the exemptions.

The new rule was challenged by 21 states and multiple business groups, arguing that such change was unlawful. In issuing the preliminary injunction, the judge agreed, noting that the rule change “creates essentially a de facto salary-only test,” which Congress had not intended. In the press release, however, the DOL stated, “The Department’s Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule.”

auction-gavel-HpmTks-clipartA federal judge in Texas has issued a preliminary injunction that prevents the Department of Labor’s revised overtime exemption rule from taking effect as scheduled on December 1, 2016.

As discussed in our May 18, 2016 E-lert, in order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question.  There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty. Continue Reading Overtime Rule Will Not Take Effect On December 1

pleAs a die-hard management-side labor and employment attorney who has been frustrated with the recent flood of anti-employer decisions coming out of the National Labor Relations Board, I enjoy those infrequent moments when a union experiences a little of that pain – such as in the recent case of Laborers Union Local 91.

To give a little background, all employees (whether unionized or not) have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activity regarding the terms and conditions of employment for their “mutual aid or protection.” The Board has issued a number of rulings finding that employees’ social media activity (e.g. Facebook posts and likes, and tweets) criticizing, disparaging, and otherwise describing their employers in ways I (and many others) would find offensive is protected under Section 7. (Meaning that the employer cannot discipline or terminate the employee for engaging in seemingly inappropriate behavior against the employer). Unions, of course, have been supportive of these decisions. But it appears that at least one of them did not realize the same rule applies to unions. Continue Reading Union Violates Employee’s Right to Engage in Protected Social Media Activity