Apparently yes – at least in New Jersey. In Hager v. M&K Construction, a New Jersey state appellate court recently affirmed a workers’ compensation judge’s order for an employer to reimburse a former employee for his use of medical marijuana for chronic pain following a work-related accident. Continue Reading Must an Employer Pay for Medical Marijuana?

As I discussed in a blog post last year, the Equal Employment Opportunity Commission has been bringing cases on behalf of applicants/employees who use lawfully prescribed opioids (including methadone) against employers who fail to conduct an individualized assessment of the applicant/employee to determine whether those drugs made them unqualified for the position. In EEOC v. Steel Painters LLC, the U.S. District Court for the Eastern District of Texas held that a reasonable jury could find that the employer did just that.

Continue Reading Methadone User Can Sue Under ADA

And with that obvious (and rather snarky) statement, the U.S. Court of Appeals for the Fifth Circuit made the obvious point that an employee who was asleep or unconscious on the job was unable to perform the essential functions of his job and therefore not qualified for the position under the Americans with Disabilities Act! Now, as my regular readers know, I enjoy a good snark and my blog posts about various court decisions often contain snide comments. But in this case, the (usually quite proper) Fifth Circuit took care of that all on its own…

Continue Reading “[M]aintaining consciousness is a basic element of any job.”

On January 30, 2020, the Maryland General Assembly voted to override Governor Hogan’s veto of the “Ban the Box” bill that was passed in the last legislative session, just as we predicted in our veto E-lert. The law will prohibit employers in Maryland from inquiring about an applicant’s criminal history until later in the application process. It takes effect on February 29, 2020, and Maryland employers should prepare now to comply with the new requirements.

Continue Reading Maryland’s General Assembly Overrides “Ban the Box” Veto – What’s Next for Employers

Pronouns – those articles of speech referring to the person other than by name – have become complicated. My law firm writes a lot (articles for L&E publications, monthly electronic E-Updates, E-Lerts to report actionable “new stuff” and, of course, this blog). In the “old days” we used the pronoun “he” as the universal. Then, in defiance of the “patriarchy” the term he/she or (s)he was substituted. We came to recognize that the language we use impacts attitudes about “who belongs.” 

Continue Reading Pronouns and Coworkers and Misgendering (Oh My!)

It is a truth universally acknowledged that an employee unable to perform the essential functions of his/her job must be in want of a transfer. And it is also quite clear under the Americans with Disabilities Act that the employer must consider a transfer or reassignment to a vacant position as a reasonable accommodation. What is less clear is whether the employee automatically gets the position (i.e. an arranged marriage) or whether the employer can require the employee to compete for the position (see, e.g. “The Bachelor”).

Continue Reading A Marriage of Convenience? EEOC Continues To Push Non-Competitive Transfer as Reasonable Accommodation

The Department of Labor has issued its Final Rule explaining when separate companies will be deemed joint employers of a single employee under the Fair Labor Standards Act. In so doing, the DOL has made findings of joint employer status to be less likely, including in franchise situations.

Continue Reading DOL Issues Final Joint Employer Rule, Making Such Findings Less Likely

In Shakespeare’s play, Julius Caesar cried out “Et Tu Brute?” – translated “Even you Brutus?” – as he lay dying from the assassin’s sword that had been plunged into his chest by his friend and confidant, Marcus Brutus.  These words came to mind as I read an article about a sordid tale of rampant sexual misconduct by SEIU officials. Even them???

Continue Reading #MeToo (Et Tu SEIU?)

As of January 1, 2020, employers need to ensure that employees classified as “exempt” from overtime requirements are being paid the required salary.  Pursuant to the U.S. Department of Labor’s final rule, the minimum salary for executive, professional, and administrative employees has increased.  As we reported in our September 24, 2019 E-Lert, the new rule increases the salary required to meet the exemptions to $684 per week (the equivalent of $35,568 per year).  The required compensation for highly compensated employees is raised to $107,432.  Our E-Lert provides further details about the new rule.  If you need assistance determining whether your employees meet the exemptions under the Fair Labor Standards Act, please contact any Shawe Rosenthal attorney. Continue Reading Changes to Wage and Hour Law Took Effect January 1, 2020

In its unpublished decision in Bloomsburg Care and Rehabilitation Center, the National Labor Relations Board (NLRB or Board) expressed a willingness to reconsider, and likely expand, what constitutes an alleged supervisor’s ability to “effectively recommend” discipline. The National Labor Relations Act (NLRA) provides that if an individual performs one of several functions, including the ability to discipline, or can “effectively recommend” one of these functions (e.g., discipline or hire), the individual is a supervisor. Under current law, which was applied by one of the Board’s Regional Directors, the Board will not find that an individual effectively recommends discipline if the recommendation is reviewed or independently investigated by upper management.

Continue Reading NLRB To Expand Definition of Effective Recommendation of Discipline?