Posts byCharlie Plumb

Retaliation claims can sink an employer

Retaliation claims of any variety are potentially explosive for employers. Nothing angers jurors, courts or governmental agencies like an employee’s accusation they were fired in retaliation for exercising their rights or “doing the right thing.” Ultimately, a jury, court or agency must decide: “What was the employer’s true reason for firing the employee?” A case
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EEOC clarifies rules for wellness programs

Wellness programs in the workplace Increasingly, employers are putting in place wellness programs aimed at promoting healthier lifestyles and preventing disease among the workforce. Often they are offered in conjunction with company-sponsored health insurance plans. According to the benefits consulting firm Towers Watson, more than one-third of all employers charge a penalty to employees who
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Disabilities that pose a ‘direct threat’ in the workplace

The Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of disability. The ADA also requires employers to reasonably accommodate disabled individuals who are qualified for a position. However, the ADA recognizes a “direct threat” defense for employers who have been sued for disability discrimination. A “direct threat” involves a “significant risk of
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Ebola answers for employers

It comes as no surprise that employers increasingly find themselves dealing with workplace challenges relating to Ebola. The issues tend to arise in two contexts: How should employers respond to employee concerns, and what steps should employers take to protect their workforce from the Ebola virus?
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EEOC: Trolling for plaintiffs

It’s no secret to employers that the Equal Employment Opportunity Commission has taken a more provocative and confrontational approach to investigating and litigating claims of employment discrimination. But the EEOC’s treatment of Case New Holland, Inc. takes “pushing the envelope” to a new level. To make matters worse, a federal court has OK’d the EEOC’s
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EEOC amps up attack on background checks

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Although disclaiming any authority to prohibit employers from obtaining or using criminal history information concerning applicants or employees, the EEOC
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Not a ‘team player’… or sex discrimination?

From time to time, employers discharge employees because they’re “not a good fit” or “not a team player.” While these may be perfectly good reasons for ending someone’s employment, be aware that in some situations courts or jurors may believe the employer is using that explanation as a way to conceal a discriminatory motive.
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Cursing employee denied unemployment benefits

Hard to believe, but this spring was the first time an Oklahoma case answered the question whether offensive language directed by an employee toward a supervisor disqualifies the fired employee from receiving unemployment benefits. Like many employment questions, the answer is not as clear cut as you might expect. Throw-down at the car dealership Jeffrey
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Potential harassers not limited to employees

Employers are well aware of their obligation to act promptly to stop harassment or discriminatory behavior in the workplace when it is committed by employees. But this obligation can be more extensive. Employers are required to maintain a harassment-free workplace, and that can mean addressing inappropriate or harassing behavior directed toward employees by third parties,
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NATIONAL LABOR RELATIONS BOARD » Courteous, professional workplace policy outlawed

In recent months, some of the National Labor Relations Board’s intentions have become obvious. First, the NLRB plans on devoting considerable attention and resources towards non-union employees and employers. Next, the NLRB will aggressively challenge employers who it believes improperly attempt to manage workforce conduct. Two back-to-back NLRB rulings graphically illustrate the agency’s path for
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DRUG/ALCOHOL TESTING » Federal agency proposes clearinghouse for commercial driver drug test results

Employers who hire commercial drivers may not know if an applicant under consideration has a past history of positive drug or alcohol tests. Currently, the employer can only rely on information about earlier test results that is volunteered by the individual applying for the driving job.  If a new rule proposed by the U.S. Department of Transportation
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DRUG & ALCOHOL TESTING » Discriminatory drug testing leads to liability

You may have an entirely lawful and appropriate drug and alcohol testing program for your employees. However, inconsistent or discriminatory application of the testing policy can get an employer into trouble. That’s what happened with Ottenberg’s Bakers. The bakery’s testing policy Ottenberg’s Bakers had in place a drug and alcohol testing policy that included post-accident testing.
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WAGE AND HOUR » Preview of future overtime lawsuits?

Lawsuits over unpaid overtime tend to occur in cycles, and a round of litigation over unpaid overtime can trigger “copycat” claims against employers around the country. Overtime lawsuits can be lucrative, particularly when they are class actions involving a large number of employees. That’s why last week’s class action lawsuit brought against Apple, Inc. got
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EMPLOYMENT LAW UPDATE » FMLA leave and same‑sex spouses

After the U.S. Supreme Court handed down its decision regarding same-sex marriages in United States v. Windsor this summer, a number of governmental agencies charged with administering employment laws have issued explanations about how they intend to apply the high court’s ruling. Following that trend, the U.S. Department of Labor recently announced its application of
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LABOR LAW UPDATE » Pro-union poster rule strikes out

During the last several years, the National Labor Relations Board has taken an increasingly active stance in promoting unions and union organizing efforts. Yesterday, the U.S. Court of Appeals for the District of Columbia struck down one of the NLRB’s more recent efforts, which required employers to post pro-union posters in the workplace.
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AMERICANS WITH DISABILITIES ACT » ADA accommodation talk should occur before employment decision

For disabled employees, the Americans with Disabilities Act (ADA) requires employers to consider the possibility of a reasonable accommodation that would allow disabled employees to maintain their employment. To satisfy the ADA’s reasonable accommodation requirement, an interactive discussion of potential accommodations must occur before an employer makes any employment decision.
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WORKER CLASSIFICATION » Independent contractor or employee?

Classifying someone who performs work for you as an independent contractor or as an employee can have significant ramifications. The impact may affect obligations and liabilities for employment issues as diverse as health insurance, benefits, employment taxes, wage and hour, workers compensation, unemployment, and the like. During our recent webinar about independent contractors, many of
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