Labor & Employment Law Update

Last week the EEOC filed suit against an Arizona car dealership for rescinding its offer to an applicant who tested positive for a substance banned by the company’s drug policy. The drug screen itself was legal. The ADA specifically allows employers to screen applicants and employees for illegal drug use. It was the employer’s policy of excluding anyone who tested positive for certain substances without first inquiring whether the substance was legally prescribed to treat a disability that prompted the EEOC to file suit. Notably, the EEOC filed suit on behalf of this particular ...

Compensation to employees who opt out of health insurance or other benefits, known as a “cash-in-lieu” program, can be an attractive option for both employers looking to manage skyrocketing health care costs and employees looking for a little extra cash. But a recent ruling by the Ninth Circuit Court of Appeals highlights a significant risk to employers of such programs.

In Flores v. City of San Gabriel, 2016 WL 3090782 (June 2, 2016), the first case of its kind, the court held that under the Fair Labor Standards Act (FLSA) cash payments made to an employee in lieu of benefits must ...

Today, August 23, 2016, the National Labor Relations Board issued a 3-1 decision ruling that graduate students, who work as teaching and research assistants at private universities, are entitled to collectively bargain.

The NLRB did so by expanding its interpretation of the definition of statutory employees to include student assistants working at private colleges and universities. The decision reversed a 2004 decision involving a similar campaign at Brown University. While many graduate students at public universities are already unionized, their right to do so was covered ...

In the past week, the Securities and Exchange Commission (SEC) twice flexed its muscle in the arena of employee rights – taking specific aim at severance agreements that require departing employees to waive their rights to collect whistleblower awards.

Background

Severance Agreements: For many companies, it is standard practice to present departing employees with voluntary severance agreements that set out the terms of the termination of the employment relationship.  Often, these include a monetary payment from the employer in exchange for a waiver and release of various ...

Without much notice or fuss, the U.S. Department of Labor updated two employment posters late July 2016:

• The Federal Minimum Wage poster applies to employers subject to the federal minimum wage.
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While there was no change to the actual Federal Minimum Wage, some of the additions and revisions included nursing mothers’ rights; consequence for misclassifying an employee as an independent contractor; DOL enforcement; and tip credits.

• The Employee Polygraph Protection Act Poster applies to most private employers.
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Minor changes included ...

One of the most recent illustrations of the need for written anti-discrimination policies and training comes from a case out of a federal trial court in Michigan. In the case, McCrary v. Oakwood Healthcare, Inc., No. 14-14053 (E.D. Mich. Mar. 16, 2016), a hospital patient stated that he did not want to be treated by African-American hospital employees.

Cutting to the chase: such a request is unacceptable; the customer (or patient, in this instance) is not always right. Nevertheless, the patient’s request was noted in his chart—and the hospital did not immediately reject the ...

On Friday, July 29, 2016, Governor Rauner approved Public Act 99-0703, the Child Bereavement Leave Act (likely to be codified at 820 ILCS 154). Without a lot of fanfare or notice, this law became effective immediately upon signature. This law requires employers with 50 or more employees (those subject to the Family and Medical Leave Act) to provide two weeks (10 business days) of unpaid bereavement leave to employees so that they can:

(1) attend the funeral or alternative to a funeral of a child;

(2) make arrangements necessitated by the death of the child; or

(3) grieve the ...

On July 28, 2016, the Sixth Circuit Court of Appeals issued an unpublished decision that analyzed an Americans with Disabilities Act (ADA) failure to accommodate a claim involving an employee who had applied for and received social security benefits for her disability. This case provides a helpful reminder on how employers should handle ADA plaintiffs who allege that they can return to work with accommodation but elsewhere represent that they are totally disabled from working.

In Stallings v. Detroit Public Schools, Case No. 15-2428, the court affirmed the district court’s ...