Labor & Employment Law Update

We have all heard the mantra “the customer is always right,” but what is an employer to do when a customer’s request conflicts with an anti-discrimination law? As a Florida security firm learned last week, an employment decision that is based on disability violates the Americans with Disabilities Act (ADA) even if the decision is made in direct response to a specific customer complaint. Alberto Tarud-Saieh lost his right arm in a car accident. Later, he was hired by Florida Commercial Security Services as a security guard and assigned to provide security services for a ...

On November 4, 2014, five states — Illinois, Alaska, Arkansas, Nebraska, and South Dakota — as well as a handful of cities and counties, will all vote on various binding and non-binding initiatives that contemplate raising the minimum wage.  These state and local initiatives arise after a failed attempt to bring the issue on the federal level earlier this year, and are important to watch in an ever borderless commerce system.

The state roundup of Minimum Wage Initiatives is as follows:

Illinois

The Illinois Minimum Wage Increase Question, which is on the November 4, 2014 ballot, is ...

On November 4, 2014, Massachusetts voters approved a ballot referendum requiring Massachusetts employers to provide paid sick leave.  The new law will take effect on July 1, 2015.  Massachusetts joins California and Connecticut as states requiring employers to provide paid sick leave, along with cities such as San Francisco, Newark and New York City.

Under the new Massachusetts law, employers with 11 or more employees must allow all employees (whether full or part time) to earn and use up to 40 hours of paid sick time per year.  Employees accrue paid sick time at the rate of 1 hour for every ...

A few years ago, courts recognized that corporations have First Amendment rights to speech.  E.g. Citizens United v. Federal Elections Commission (2010).  Recently, a federal court deemed that a minority-owned contractor corporation – a legal entity, not a person – is African American for purposes of anti-discrimination in contracting law.  Is recognizing a corporation’s “race” just a logical “next step” or does this “race” attribute open up unworkable and unforeseen consequences?

Federal laws prohibit discrimination in contracting based on race ...

The Seventh Circuit Appellate Court’s decision last week in Kauffman v. Petersen Health Care VII, LLC, makes clear that the time an employee spends on a given job duty is critically important when it comes to reasonable accommodation requests under the Americans with Disabilities Act (ADA).  The Kauffman case also reinforces an important lesson on a reasonable accommodation pitfall that employers must absolutely avoid.

The employee, Debra Kauffman, was a hairdresser at a nursing home, and one of her duties in that role was to push wheelchair-bound residents to and from the ...

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it has filed suit against a second employer alleging the employer’s wellness program is in violation of the Americans with Disabilities Act (ADA).  The EEOC’s first lawsuit of this kind was filed a couple months ago alleging the employer’s wellness program was not voluntary and the employee was discharged for failing to participate in the program.  The ADA concern is that wellness programs often require “medical examinations” and involve “disability-related ...

Beginning January 2015, employers will be subject to extensive ACA reporting requirements. Although submission of the data for 2015 will not take place until early 2016, employers and insurers need to start capturing the required data in January and should ensure that all the proper data can be captured and tracked prior to the beginning of the year.

The rules require extensive data reporting and are intended to help the IRS enforce various tax provisions of the ACA, including the employer and individual mandates.  Proposed instructions for reporting and draft forms were ...

Recently, OSHA announced that it would be lowering the burden of proof for whistleblower claim investigations from “reasonable cause” to a mere “preponderance of the evidence.” As a result, employees need only show that, more likely than not, there was an adverse employment action as a result of an OSHA complaint, rather than showing that the adverse employment action was the direct result of the OSHA complaint.

At the same time, OSHA is seeking to hire 20% more full-time employees in its whistleblower programs and will be hiring in each region an Assistant Regional ...

A judge from the Northern District of Illinois recently ruled that an employer’s policy requiring employees to notify management before seeking medical treatment violates the Illinois Workers’ Compensation Act (IWCA). The employee filed suit alleging he was fired in retaliation for exercising his rights under the IWCA. The employer explained that the employee was terminated for failing to adhere to an important workplace policy that was in place for the safety of its employees.

The employer’s policy required employees to immediately report workplace injuries and ...