A workplace rumor, especially a salacious one involving a high echelon employee, can take on a life of its own and reverberate throughout the workplace in unforeseen ways that can result in potential liability to an employer and result in expensive litigation.  The Parker v. Reema Consulting Services, Inc. case provides guidance for employers on the issue of workplace rumors and gossip.

Continue Reading Why Employers Shouldn’t Dismiss Workplace Rumors and Gossip—Courts Aren’t

So my partners and I have repeatedly written that, under the Americans with Disabilities Act (ADA), employers – not employees – get to choose among available accommodations to enable an employee with a disability to perform their essential job functions or enjoy equal privileges and benefits of employment. (See here and here, for example).  But, as a federal appellate court recently explained, that principle is not without limitation – at least as to reassignment.

Continue Reading “Reassignment is the reasonable accommodation of last resort”

So said a federal court in tossing an employee’s rather cheeky claims of interference with her rights under the Family and Medical Leave Act, as well as retaliation for taking FMLA leave, when she was fired after taking a trip to Thailand – for which she had previously requested time off and was denied – while on FMLA leave.

Continue Reading “Taking a Trip Is Not Protected Activity Under the FMLA”

Every now and then I read a case where from the beginning when presented with the employer’s handling of a termination, I can see the wheels coming off – so to speak.

Such was the case when I read Matchko v. Kost Tire Distributors, Inc.  The employer laid off (or was he terminated? – more on that later) its 73-year old District Manager, who had received several promotions, had never been disciplined, and had never received negative performance evaluations. He sued, alleging age discrimination under the Age Discrimination in Employment Act and state law.


Continue Reading Employers – Make Sure Your Story Makes Sense! (And Is Truthful!)

In response to the coronavirus pandemic, many employers have permitted or mandated telework arrangements for their employees.  As more people become vaccinated and the number of new COVID-19 cases declines, however, those employers will likely begin to recall their employees to the office.  Unsurprisingly, many employees have become accustomed to working from home over the past year, and enjoy the ability to wake up, throw on athleisure, and do a couple loads of laundry as they go about their workday.  This begs the question: is an employer obligated to permit an employee to telework simply because the employee finds working from home more preferable, desirable, or convenient than going to the office?   A federal judge in the District of Columbia recently said “no.”

Continue Reading Employees Don’t Get to Telework Just Because They Want To…

With case rates declining and COVID vaccine options expanding, five States as of March 8, 2021 have announced the end of all pandemic-driven restrictions, including mask mandates. (The lifting of Texas’ ban takes place on March 10; eleven states never mandated face coverings.) The “mask wars” had been tamped down by State mandates, but détente has ended in the “open” States. What does this mean for workplaces?

Continue Reading What to Do About Workplace Masking in the “Open” States

In my spare time (which has been limited during the pandemic, given the whirlwind of COVID-19-related legal developments), I like to peruse the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law. (Nerd alert!) In addition to summaries of recent EEOC decisions and federal court opinions, each digest contains an article that provides some insight into the EEOC’s position on a particular topic. Now while the articles are targeted towards federal agencies, they offer private employers a roadmap as to the EEOC’s thinking. We’ve blogged about prior articles on religious discrimination, remedies for discrimination, comparing harassment prevention to crime prevention, and new types of race discrimination, among other things. A recent article caught my eye – “Claims of Harassment and the Problem of Fragmentation.” (Well, that’s a new phrase to me!)

Continue Reading What Is Fragmentation of Harassment Claims? The EEOC Speaks

Following the shocking events of January 6, 2020, there have been many reports of individuals who have been terminated, suspended or resigned from employment as a consequence due to their involvement in the deadly storming of the Capitol building or their active support of President Trump’s “stolen election” narrative. But what exactly are the parameters of when an employer can take action against an employee for engaging in off-duty activities that an employer may find repugnant? We first blogged about this issue back in 2017, in light of the deadly white nationalist/supremacist rally in Charlottesville. But a refresher seems timely.
Continue Reading Can Employers Terminate for Off-Duty Conduct (Say, Like Storming the Capitol)?

In my occasional series of blog posts involving I-can’t-believe-they-said-that employee excuses, here’s one that made my jaw drop.

Many of you are familiar with the Wal-Mart greeter – that friendly person at the store entrance who used to welcome shoppers with a hello and perhaps an offer of assistance. (And I say “used to” because apparently the position has been replaced by a  “customer host” position that provides more customer service and theft prevention functions throughout the store). This position, which was created by founder Sam Walton, was a large part of the company culture.  It seems obvious that the essential function of a greeter is, well, to greet customers. Which would necessarily require the greeter to actually be present in order to do so, right?


Continue Reading Extraordinary Employee Excuses: Attendance Is Not An Essential Job Function of a Greeter?