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…

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

In the era of the #MeToo movement, it may be easy to overlook that equal pay is also having a moment. A huge moment. The federal Equal Pay Act (“EPA”) of 1963 requires “equal pay” for “equal work.” If the plaintiff shows a difference in pay for such work, the employer must prove the wage difference is due to a legitimate reason, which includes: Continue Reading Is Equal Pay becoming the new #MeToo?

I LOVE when people bring treats into the office.  From bagels, to muffins, to cakes, to cookies – I will eat them all.  That’s why when I saw a story about brownies being brought into an office with a little something extra baked into them (hint, the secret ingredient was NOT love), I was taken aback. Continue Reading Lessons Learned from those “Special” Treats in the Breakroom or at the Office Party

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?

On May 21, 2018, the U.S. Supreme Court held in Epic Systems Corp. v. Lewis that employment agreements containing waivers of the right to bring class or collective actions over employment-related disputes are enforceable under the Federal Arbitration Act (FAA). In so doing, the Court rejected the National Labor Relation Board’s position that such waivers violate the National Labor Relations Act (NLRA) – a position subject to much controversy in the courts and federal agencies. Continue Reading U.S. Supreme Court Approves Use of Class Waivers in Employment Agreements

I know I’m dating myself, but as a lawyer of a certain age, I like a legal agreement to be in paper, with handwritten signatures. The growing use of electronic agreements and signatures is certainly easy and convenient, but it still gives me a little queasy feeling – like the agreement doesn’t really exist. (Don’t even get me started on bitcoin…) I don’t mean to suggest that electronic agreements and signatures aren’t valid. They certainly can be, as I discussed in detail in a prior blog post, Electronic Signatures v. Handwritten Signatures. But, as I also explained in that post, the use of electronic methods does open the door to questions about whether employees actually entered into the agreements in question, as happened in the recent case of Gupta v. Morgan Stanley Smith Barney, LLC. Continue Reading Wait – That E-mail Is a Legal Agreement?

As an employment attorney, I deal with new issues nearly every day.  But, there’s one issue that seems to come up on a regular basis.  It involves employers asking for advice about terminating employees who have violated work rules but also have engaged in legally protected activities, such as taking leave under the FMLA.  Employers are often hesitant to terminate such employees for bad behavior out of fear of being accused of violating the law.  A case out of the Eastern District of Pennsylvania (Arana v. Temple University Health System) from last week provides support to employers that discipline and even terminate employees for violating workrules put in place for safety purposes.    Continue Reading No, You Can’t Sleep on the Job, Especially when it’s a Matter of Life or Death!