For all you employment litigators, we just learned that you don’t have to file a Freedom of Information Act (FOIA) request with the Equal Employment Opportunity Commission (EEOC) in order to get its file on a plaintiff’s charge of discrimination! What?! Our (admittedly somewhat limited) world has been rocked!
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And with that elegantly pointed statement, the U.S. Supreme Court vacated an opinion on the Equal Pay Act that had been issued by the en banc U.S. Court of Appeals for the Ninth Circuit (i.e. the entire group of judges on the Ninth Circuit bench). The opinion had been authored by Judge Stephen Reinhardt, who unexpectedly passed away on March 29, 2018. The opinion was not issued until April 9, 2018 – 11 days after his death.
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In my occasional series on the crazy things that employees do, here’s one that, in reality, is probably not all that uncommon. Many people use their personal cell phones for work. And as a matter of habit, they may plug their cell phones into their work computer – maybe to sync it or charge it. But what they aren’t thinking about is that the work computer backs up the content on the phone. All. Of. It. (Unless the employee is technically savvy enough to back up only portions of it. Let’s be frank – most people aren’t that savvy.)
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Some employers view a reduction in force as an apparently easy and clean way to get rid of employees they do not want – like poor performers, who have not been properly performance-managed.  There may even be less appropriate considerations in mind – an older employee viewed as slowing down, an employee with health problems who has missed a lot of work, a pregnant employee who will need leave after her child’s birth. These employers assume that if the employee accepts a severance package and signs a release, the matter is closed.  The case of Hawks v. Ballantine Communications, Inc., however, highlights the peril of such thinking.
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In my occasional series on extraordinary employee misconduct, I was both shocked and amused by a case involving a trooper who was fired after he hit on a female motorist after arresting her! While he was on a last chance agreement for (wait for it…) hitting on another female motorist after arresting her! I mean, I know the dating scene can be rough, but this really does not seem like a good dating approach.
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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.
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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?
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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!
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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.
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