OFCCP Invites Comments on Proposed Rule Setting: Numerical affirmative action goal for federal contractors' employment of disabled personsBy Ted Olsen
On December 9, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a Notice of Proposed Rulemaking, with regard to a proposed new rule that – if implemented after the comment period – would, among other things, set for federal contractors a goal that at least seven per cent of the employees in each job group of each contractor be individuals with disabilities.
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No "Regarded As" Disability Discrimination Liability Despite Numerous Inappropriate Workplace CommentsBy Ted Olsen
Any employer that has endured a lawsuit can vouch for the fact that inappropriate comments by supervisors to employees, sometimes perhaps meant as jokes, can create serious problems. Comments and jokes that may have been innocent when made are often later twisted and interpreted as evidence of illegal intent. In a recent Pennsylvania case, the employer was able to avoid a “regarded as” disability disparate treatment claim despite a supervisor’s numerous alleged inappropriate remarks. Notwithstanding this outcome, we do not recommend that these comments be made to employees.
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Wal-Mart's Efforts to Woo "Healthier" Employees Discoverable in Age, Disability Suit
By Brooke Colaizzi
A discovery ruling from a federal district court in California raises serious concerns that employers’ quests for healthier workers will become fodder for discovery – and potential liability – in employment discrimination litigation. The Court ruled that Wal-Mart must produce a 2005 confidential internal memorandum that was presented to the Company’s Board of Directors and contained preliminary recommendations for reducing healthcare costs based on a statistical analysis conducted by a third-party consulting firm. Among the recommendations was a proposal to attract a healthier workforce by redesigning all jobs to include some physical activity and offering benefits that would appeal to “healthy” employees. READ MORE TOP
"Severe Obesity" Deemed a Per Se Disability
By Ted Olsen
Being overweight is not necessarily an impairment qualifying as a “disability,” under the ADA. But the Equal Employment Opportunity Commission has taken the position that “severe obesity,” defined as body weight more than 100 per cent over the norm, is such an impairment. In a case last month in Louisiana, a federal court accepted the EEOC’s approach to such “severe obesity,” holding that a 5’2” woman who weighed 527 pounds was “disabled,” without any evidence that her weight stemmed from a physiological disorder.
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Employer's Discriminatory Actions and Statements Gave Employee Reasonable Belief His Application for Promotion Was "Futile"; Lack of Application No Bar to Claim
By Ted Olsen
To make a prima facie case of discrimination regarding non-promotion, the plaintiff typically must show that he or she applied for and was qualified for an open position the employer was seeking to fill. If an employee does not apply for a position because he or she believes it will be “futile” to do so, due to unlawful discrimination, is the claim barred by the lack of an application? According to a recently decided case in Maine, no, the claim is not barred, if the employee’s belief is reasonable. Moreover, this rule is not limited to cases of pervasive discrimination.
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EEOC Charge Period Starts When Demotion Announced, Not When Employee's Compensation Later Reduced
By Andy Volin
In a favorable ruling for employers, the Tenth Circuit recently affirmed the dismissal of claims for an allegedly discriminatory demotion, as barred by the 300-day statute of limitations that applies to the filing of a charge of discrimination. In doing so, the Court ruled the 2009 Lilly Ledbetter Fair Pay Act only changed the statute of limitations for claims of discriminatory compensation, and not other types of claims that may also affect employees’ compensation. READ MORE TOP
Not Retaliatory to Fire a New Hire Because of Her Testimony in Discrimination Case at Her Previous Place of Employment, at the Insistence of the AccusedBy Ted Olsen
The firing of a new hire before she even started work, because another candidate being recruited by the employer insisted she not be employed there, due to her having testified against him in a sexual harassment case at a previous place of employment, was held not to be retaliatory under Title VII and the Arkansas Civil Rights Act. Because the plaintiff’s protected activity occurred when she was employed elsewhere, the Court held there was no nexus between the activity and her discharge at another place of employment.
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NLRB Delays Employee Rights Notice-Posting Rule Again By Ted Olsen
In our last newsletter, we reported that the National Labor Relations Board (“NLRB” or “Board”) had postponed the effective date of its new employee rights notice-posting rule from mid-November 2011 to January 31, 2012. However, on December 23, 2011, the NLRB announced that it had further postponed the effective date of the rule to April 30, 2012. READ MORE TOP
President Nominates Two to Sit on National Labor Relations Board; Possibility That Board Will Be Unable to Issue Decisions in 2012 By Karla Sanchez
On December 14, 2011, President Obama announced his intent to nominate Sharon Block and Richard Griffin to the National Labor Relations Board. Both have prior NLRB experience. The Board cannot issue decisions without three sitting members. If the Senate does not confirm at least one of the President’s nominees, and if the President does not appoint at least one via a recess appointment, the Board will be unable to issue decisions. READ MORE TOP
Employer's Historic Practice of Across-The-Board Pay Increases "If Feasible" or "If Sufficient Funds Existed" Was Not a Condition Of Employment That Had to Be Continued for Union-Represented EmployeesBy Ted Olsen
Under traditional labor law, an employer may not deny an established condition of employment to employees who vote for union representation, in an effort to punish such employees. This simple proposition is complicated by the fact that – in such situations – the union is negotiating for new conditions of employment, in place of the established conditions, and the unionized employees presumably should not get both the established and new conditions. However, in one recent case, the D.C. Circuit Court of Appeals reversed the National Labor Relations Board, holding that the employer’s previous pay increases had basically been discretionary, such that they could lawfully be discontinued for union workers.
READ MORE TOP Employer May Be Liable Under Federal Law for Posting Entries on Employee's Personal Facebook Page and Twitter Account – But What Exactly is Being Protected?By Ted Olsen
Employers continue to grapple with the limits of their rights, if any, with regard to the personal social media of their employees. In what could become a watershed case, the U.S. District Court for the Northern District of Illinois ruled that an employer that posted entries on an employee’s personal Facebook page and posted “tweets” on her personal Twitter account, to promote its business, without her authorization, may be liable to the employee.
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Minimum Wage in Colorado IncreasesBy Ted Olsen
On January 1, 2012, the minimum wage in Colorado was increased to $7.64/hour, based on changes in the state’s consumer price index. Since 2006, the Colorado minimum wage has been indexed to the rate of inflation. The exemptions to the Colorado minimum wage order are similar to, but not identical to, those that exist under the Fair Labor Standards Act, the federal wage and hour law. Also, the federal law applies to a wider range of employers than does the FLSA. The increase in the state minimum wage does not affect the federal minimum wage ($7.25/hour).
TOP Choice of Law Provision in Non-Compete and Non-Solicitation Agreements May Mean No Choice for Employers In ArizonaBy Rose McCaffrey
The enforceability of non-compete and non-solicitation agreements vary dramatically from state-to-state. For this reason, prudent employers often attempt to maximize the enforceability of their agreements by expressly providing in the agreements that they are governed by the law of a state with favorable law. Also, an employer with nationwide operations may select one state’s law to govern all its agreements, for the sake of predictability and uniform interpretation. In most cases, courts – regardless of where they sit – respect the parties’ selection of governing law, if the state whose law is chosen has some reasonable relationship with the parties, their transaction or their relationship. A recent decision in Arizona, however, has effectively invalidated “choice of law” provisions in such agreements when Arizona’s law contradicts the state law chosen by the parties. Because Arizona law is less supportive of non-compete and non-solicitation agreements than many other states’ laws, this could preclude the enforcement of many such agreements.
READ MORE TOP Discharge of Church Preschool Director for Living With Boyfriend and Raising Child Out of Wedlock, is LawfulBy Ted Olsen
In a recent case before the California Court of Appeal, a church’s dismissal of its preschool director – after she divorced, lived with her boyfriend in a sexual relationship, had a child out of wedlock, and then raised the child with the father in the same home – was found lawful. The Court ruled that, as a matter of law, the discharge did not violate the state Fair Employment and Housing Act, Title VII, or California state public policy.
READ MORE TOP If you have any questions, please contact any member of the Sherman & Howard Labor & Employment Team: |