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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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01 Sep 2015 Hiring Advertisements May Help Avoid Claims Under the ADA

Employers should carefully consider what their hiring advertisements say and include language regarding the essential functions of the positions for which they are hiring; such wording may assist in a discrimination claim.  In Kilcrease v. Domenico Transp. Co., Court No. 13-cv-03193-WYD-MJW (D. Colo. Aug. 28, 2015), the employer successfully defended claims under the Americans with Disabilities Act (ADA), as amended and such success was based, in large part, upon the company’s job advertisement which clearly outlined the essential functions of the position.   Mark Kilcrease…

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01 Sep 2015 Employer Changes Mind, Denies Accommodation to Deaf Applicant, Heads to Jury

A federal appellate court ruled that an employer that rescinded an offer of employment to a deaf applicant for a position monitoring plasma donors does not get summary judgment on the applicant’s Americans with Disabilities Act (ADA) failure to accommodate claim, and the case should proceed to a jury.  The court found the applicant presented two potential accommodations that would overcome her inability to hear audible alarms from donors the reasonableness of which must be determined by a jury – (1) installing visual or vibrating…

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31 Aug 2015 Are Your Employees Religious Enough For The NLRB?

The NLRB is at the center of the most recent battle over religious freedom. At issue is the religious character of faculty at religious colleges and universities. Since the U.S. Supreme Court’s ruling in NLRB v. Catholic Bishop of Chicago, the board has been barred from regulating employees in religious educational institutions. However, in recent years, the board has tried to narrow the reach of the Catholic Bishop of Chicago case by arguing that it only applied to institutions of a “substantial religious character.” When…

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27 Aug 2015 The Witness Files: 10 People We Keep Seeing in Workplace Investigations (cont.)

I have written here and here on BT Currents about the fact that it seems there are a handful of types of characters – among the complainants, the accuseds and the innocent bystanders alike – who seem to present themselves over and over again in workplace investigations, and a series I have written on i-sight.com about these characters and key strategies for dealing with each of them. The 10 characters I have identified are the following:   Complainants – Poor performer – Questionable complainant –…

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19 Aug 2015 Not All Good Deeds Are Punished: A Paid Suspension Is Not An Adverse Employment Action For Title VII

Chalk up a victory for logic.   Addressing an issue of first impression, the federal Third Circuit Court of Appeals (which covers Delaware, New Jersey and Pennsylvania), recently held that an employee’s suspension with pay is not an adverse employment action for purposes of Title VII. In doing so, the Third Circuit has joined several of its sister Circuits across the country, including the Second, Fourth, Fifth, Sixth and Eighth Circuits.   The case, Jones v. Southeastern Pennsylvania Transportation Authority involved an employee who was…

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14 Aug 2015 Clarity from the 9th Circuit: The ADA Does Not Require Employer to Keep a Potentially Violent Employee

A recent decision by the Ninth Circuit Court of Appeals affirms our faith in the federal courts on issues of workplace violence. In the case of Mayo v. PCC Structurals, Inc., the plaintiff/employee argued that he was a victim of disability discrimination under Oregon law after he was fired for threatening his co-workers. (The court notes Oregon’s disability law is similar to and similarly analyzed as the Americans with Disabilities Act.)   The employee had a history of major depressive disorder, and after making threats…

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30 Jul 2015 The South May Rise Again Someday, But Not In Your Workplace

The recent debate over the South Carolina State House’s flying of the Confederate flag has stirred up a great deal of controversy. Most Americans believe the flag is a symbol of bigotry and oppression and demanded the immediate removal of the symbol of the Confederacy. A small vocal minority of Americans, however, have rallied around the Stars and Bars, claiming it stands not for racism, but instead for Southern heritage and pride. Many in this group of supporters, both in the South and around the…

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30 Jul 2015 Silencing the Lion King

By now you may have heard of Dr. Walter Palmer, the Minnesota dentist/hunter who has risen to global infamy for allegedly shooting Cecil the Lion. What you may not have heard is the recent revelation in the news that he was sued by a former employee for sexual harassment and that he settled out of court for $127,500. According to news reports, the good (or not so good depending on your point of view) doctor is reputed to have settled the case to resolve it…

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27 Jul 2015 Employee Can’t Count to 15 Under ADA Using Volunteers or Other Companies’ Employees

  One of the most significant ongoing type of employment issues is the treatment as employees of individuals the employer thought were not — interns are found to be entitled to back wages, nominal independent contractor status is repeatedly challenged in court and temporary agency workers are at risk of being treated as the customer’s employees as well.  Workers found to be employees are entitled to the protections of the various employment laws.   A secondary but sometimes equally important implication of employee status is…

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22 Jul 2015 Enhanced Discrimination Protections Potentially on the Horizon for Federal Employees

The U.S. House of Representatives has approved a bill (H.R. 1557) that would afford additional anti-discrimination and anti-retaliation provisions to federal employees.  H.R. 1557, introduced in March of this year and titled the Federal Employee Antidiscrimination Act of 2015, amends the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, placing stringent requirements upon federal agencies to be transparent and accountable when investigating and rectifying complaints of discrimination or retaliation. The bill passed by a landslide in the House of Representatives this week, with…

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