The U.S. Court of Appeals for the Ninth Circuit has a reputation as an employee-friendly forum.  Yet that Court recently rendered a decision that employers should applaud.  In Carlson v. Charter Communications, LLC, the Ninth Circuit refused to revive a former employee’s lawsuit against his employer in which he alleged that he was wrongfully terminated due to his legal use of medical marijuana.  Interestingly, the panel of the Court that issued the decision consisted of two judges appointed by Presidents Clinton and Obama and one judge appointed by President George W. Bush.  The case involved a Montana statute known as the Montana Marijuana Act, which allows patients with state-issued medical marijuana program cards to have a certain amount of marijuana in their possession. Continue Reading Employers Tread Carefully!  The Interplay between Federal and State Laws Regarding Medical Marijuana Usage

Any HR professional who has dealt with the Family and Medical Leave Act knows that determining when and how the statute applies can be very tricky.  One thing that is clear, however, is that employees who have worked for less than one year and have not worked a total of 1250 hours are not eligible for FMLA leave and thus are not protected by the statute.  Or so we thought!  A case from last week, Reif v. Assisted Living by Hillcrest, LLC, dispels the notion that employees who have worked for less than a year are never subject to the protections of the FMLA. Continue Reading Employers Beware: What You Say Can and Will Be Used Against You!

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!

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

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…

Co-Author Nick Vogt*

In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the United States Supreme Court held that public sector unions may not assess union fees against non-union employees covered by a collective bargaining agreement. In so holding, the Supreme Court overturned its decades-old ruling in the case of Abood v. Detroit Board of Education, in which the Court held that public sector unions could assess fees regardless of membership status, because all employees benefit from union collective bargaining agreements regardless of union membership. Continue Reading Supreme Court Holds that Public Sector Unions May Not Assess Union Fees Against Non-Union Employees

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?