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…

Back in 2016, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which Shawe Rosenthal is a member, we filed suit against the U.S. Department of Labor to block the DOL’s new interpretation of the “persuader rule,” which is the advice exemption of the Labor Management Reporting and Disclosure Act (“LMRDA”). Several other suits were filed as well, a nationwide injunction was issued by a federal court in Texas, the DOL issued a proposed rule to rescind the new interpretation, and now, repeatedly citing the favorable decisions in our lawsuit and directly quoting the comments to the DOL’s proposed rule we submitted on behalf of Worklaw, the DOL has officially rescinded the rule. Continue Reading We Sued the DOL, and the DOL Blinked

I was perusing the Equal Employment Opportunity Commission’s recently released Volume 2 of its 2018 Federal Digest of Equal Employment Opportunity Law (yes, I know I need some better hobbies), and noticed an article entitled, “Assessing Workplace Harassment Prevention Methods Through Comparisons With Similar Crime Prevention Strategies.” The article posits that “[b]y comparing harassment prevention strategies to similar crime prevention efforts, for which empirical research already exists, the EEOC hopes to identify useful tools for preventing workplace harassment.” Well, that struck me as an interesting, if somewhat questionable, approach. But let’s look at what the EEOC says. Continue Reading The EEOC Compares Harassment Prevention to Crime Prevention

This week, the Equal Employment Opportunity Commission trumpeted a $4.4 million settlement in a lawsuit in which the EEOC claimed that Amsted Rail had violated the Americans with Disabilities Act by disqualifying applicants based on the results of a test for carpal tunnel syndrome. In the EEOC’s press release, Andrea G. Baran, regional attorney for the EEOC’s St Louis District Office, was quoted as follows: “While it is lawful under some circumstances for employers to conduct limited medical exams after making conditional offers to job applicants, it is not ‘anything goes’.” Wait, what? Actually, I thought it was “anything goes” at that point! Continue Reading What Is the EEOC’s Position on Post-offer/Pre-employment Medical Exams?

On June 6, 2018, the General Counsel of the National Labor Relations Board issued guidance on lawful and unlawful handbook rules under the National Labor Relations Act. This guidance follows the GC’s December 1, 2017 withdrawal of prior guidance on handbook rules that had been issued in 2015. Shortly thereafter, on December 14, 2017, the Board issued its decision in The Boeing Co., in which it articulated a new and more balanced test for assessing the legality of workplace rules, applicable to both unionized and non-unionized employers.  Continue Reading NLRB Issues New (And More Balanced) Guidance on Handbook Rules

On Monday, June 4, 2018, the U.S. Supreme Court, in a 7-2 decision, held that the Colorado Civil Rights Commission violated a baker’s constitutional right to the free exercise of his religion, by exhibiting hostility towards the baker’s religious views as expressed in his refusal to make a wedding cake for a same-sex couple. In so holding, the Supreme Court dodged broader questions about the interaction of the baker’s Constitutional rights to free speech and the free exercise of religion with customers’ rights to be free from discrimination. Continue Reading Supreme Court Rules for Baker in Same-Sex Wedding Cake Case

I have a friend who is a high school biology teacher. A few years ago, her class dissected a sheep’s brain. After class, one of her students confessed to her that he had licked the brain!!! (I’ll pause here for a moment so you can wrap your own brain around that….) Unsurprisingly, this caused an immediate uproar. The school nurse was appropriately concerned about possible health issues (prions that can cause horrific diseases, poisonous chemicals, etc.). On the other hand, an administrator questioned whether my friend had failed to preemptively instruct her students NOT TO LICK THE BRAIN. Um, what? I think we can agree that is one of those things that is so glaringly obvious you should not have to spell it out as a general matter. Continue Reading Starbucks – Training Employees on the Obvious?