Here’s another in my sometimes series of crazy things that employees (and, in this case, the National Labor Relations Board) do. Although the Board initially thought that employees playing driving games at highway speeds was protected activity (?!!), it has (fortunately for the rest of us drivers) rethought that position after being slapped down by the U.S. Court of Appeals for the D.C. Circuit. Continue Reading Extraordinary Employee Misconduct: High-Speed Highway Harassment

The General Counsel (GC) of the National Labor Relations Board issued a memo on October 24, 2018 that focused on the unions’ duty of fair representation to their bargaining unit members. Numerous commentators, including management-side attorneys (as I am), trumpeted the fact that the Board is holding unions accountable. There seemed to be a feeling that, after years of employers being attacked by a left-leaning Board, the playing field is being re-leveled. But, as my partner Mike McGuire pointed out, is this really good for employers? Continue Reading Does Holding Unions Accountable Help Employers?

A recent case highlighted a important point under the Americans with Disabilities Act that is often overlooked – reasonable accommodations are not limited only to enabling employees with disabilities to perform the essential functions of their jobs! They must also be provided to allow those employees to enjoy privileges and benefits of employment equal to non-disabled employees! Continue Reading Reasonable Accommodations – Not Just for Essential Functions!

Several months ago, OSHA proposed to rescind part of its revised workplace injury and illness reporting rule, which was originally issued in May 2016. The rule contained controversial electronic reporting requirements, which OSHA proposes to rescind for the most part (as we discussed in our July 2018 E-Update). As I mentioned in a recent blog post, OSHA Pre-empts CBA Drug-Testing Provisions?, this action caused me to revisit some older guidance on compliance with the surviving aspects of the rule – including the prohibition on discouraging employees from reporting workplace injuries or illnesses. Continue Reading OSHA-Compliant Injury Reporting Policies

I am constantly amazed by the lack of judgment that people exhibit in their social media postings. A recent example of this is Emerson v. Dart, in which a corrections officer who was suing her employer for discrimination decided to threaten potential witnesses through a Facebook post! Continue Reading Extraordinary Employee Misconduct – Threatening Witnesses Through Facebook

I was amused by a recent case involving rather odd facts. Apparently an employee arrived at work with windblown hair. Her co-worker said “I can fix that for you.” The employee responded, “Sure, go ahead.” The co-worker then picked up a pair of scissors and proceeded to CUT THE EMPLOYEE’S HAIR! Now, that probably would have been fine (or at least somewhat understandable) if they worked at a salon, but these employees worked at a hospital! In the pharmacy department!

Continue Reading Extraordinary Employee Misconduct – Giving a Non-consensual Haircut!

Finally! The new Family and Medical Leave Act (FMLA) forms and notices are here!

As FMLA-covered employers sadly know, the FMLA requires employers to provide certain very detailed notices to employees requesting FMLA. In addition, employers may request only very specific and limited information from employees and their (or their family member’s) health care providers. The Department of Labor provides model FMLA forms and notices that meet the FMLA’s requirements on its website. Continue Reading Time to Update Those FMLA Forms!!!

A recent case brought something to my attention that I had not focused on before. As noted by the U.S. District Court for the District of New Jersey in Vodopivec v. Anthony’s LLC, Section 1981’s specific prohibition on “race discrimination” encompasses more than just the traditional notions of race – it also includes ancestry and ethnicity! But not national origin. What?!!! Continue Reading Race Discrimination Under Section 1981 – The Lines Are Blurred

In light of the Occupational Safety and Health Administration’s recent announcement of a Notice of Proposed Rulemaking to rescind the majority of its controversial electronic reporting requirements (which we discussed in our July 2018 E-Update), I decided to review some previous guidance on these requirements (yes, because I am that much of a nerd). The requirements had been imposed through a final rule issued in 2016, which also sought to provide additional protections to workers for reporting work-related illnesses and injuries – specifically targeting safety incentive programs and drug-testing programs. I was shocked to realize that OSHA asserts that post-incident drug-testing of employees pursuant to a collective bargaining agreement violates the Occupational Safety and Health Act! Continue Reading OSHA Pre-empts CBA Drug-Testing Provisions?

Recently, I blogged about a press release from the Equal Employment Opportunity Commission in which it misstated the law on post-offer medical examinations under the Americans with Disabilities Act. I was hoping that was a one-off mistake. But another recent EEOC press release has given me some concern, because I believe that it again misleads employers on their obligations under the ADA – this time with regard to associational discrimination. Continue Reading Another Misleading EEOC Press Release on the ADA…