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June 2017 Newsletter

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to...
In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the Board has vacillated on the issue of whether Weingarten rights also extend to non-union employees. For example, in 2000, in Epilepsy...
A number of studies are showing that most, if not all, of the gender pay gap is explained by personal choices made by men and women. But how can employers protect themselves from claims of discrimination? The U.S. Bureau of Labor Statistics reports that, in 2015, women working full-time had median earnings that were 81 percent of the median earnings of their male counterparts. That is up from 79 percent in 2014. In the...
On May 3, 2017, the final curtain was rung down on the Volks saga: OSHA revoked its so-called “Volks Rule,” which would have amended the recordkeeping regulations in 29 C.F.R. Part 1904 to, it hoped, avoid the holding of the District of Columbia Circuit in AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). That decision held that the Occupational Safety and Health Administration (...
Last week, I nominated Target Corporation and MarketSource for the worst employer of 2017, because they ignored the approximately 10 incidents of vile ethnic harassment a Palestinian employee suffered during the brief two month tenure of his employment. Almost as bad was the logic of the 8th Circuit Court of Appeals, which concluded that, as matter of law, the employee failed to state a claim for ethnic harassment because the “morally...
The ADA expressly excludes from its coverage “transvestism, transsexualism, … [and] gender identity disorders not resulting from physical impairments….” Thus, it should be an easy call for a court to dismiss a lawsuit in which an employee, born a male but who identifies and presents as a female, alleges disability discrimination because of her gender identity disorder. Right?  Wrong.  In Blatt v. Cabela’s Retail (E....
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