WARNing: Yard and Annex are the same worksite

By Bill Wright When planning a reduction in force, employers always have to consider the Worker Adjustment and Retraining Notification Act (“the WARN Act”). To determine whether you have to give WARN notice of a mass layoff, you have to determine whether the workers affected are at one or more sites of employment. Recently, a […]

Has the NLRB Created a New Defense?

By Patrick Scully In court to get an injunction, the National Labor Relations Board faced the now-familiar argument that it lacked a quorum when the petition was authorized. See Noel Canning v. NLRB, 705 F.3d 490 (DC Cir. 2013), petition for cert. granted NLRB v. Noel Canning, et al., 12-1281 (June 24, 2013). To avoid […]

Employees May Take “Total Disability” And Seek Accommodation Too

By Sarah Peace Just because a disabled employee takes long term disability benefits and certifies she is unable to work, doesn’t mean she can’t seek workplace accommodations. Smith v. Clark County School District, No. 11-17398 (9th Cir. Aug. 21, 2013). In this recent case, the plaintiff, an elementary school employee aggravated a pre-existing back condition, […]

Non-Update On FMLA Coverage For Same-Sex Couples

By Matt Morrison On Friday, the U.S. Department of Labor issued an internal memo to its employees clarifying its stance on the application of FMLA to same sex couples. Eligible employees may take time off from work under the Family and Medical Leave Act (“FMLA”) when caring for a spouse of the same sex, provided […]

Kick the Habit, ADA Style

By Bryan Stillwagon Imagine your employee tells you he has a drug problem and wants help. Under your policies, you give time off for treatment. The employee detoxes, but leaves the program before “treatment.” Imagine you send him back to complete the program and he leaves again after one day. Now what? His drug addiction […]

EEOC Still Searching For Misuse Of Background Checks

By Brooke Colaizzi A federal district court in Maryland has thrown out the EEOC’s lawsuit against an event planning company for using criminal and credit information in hiring decisions. EEOC v. Freeman, No. RWT 09cv2573 (D. Md. Aug. 9, 2013). The EEOC sued the company, alleging that the use of criminal and credit background checks […]

Succession Planning at Its Worst

By Karla Sanchez Citing an “informal succession plan” doesn’t legitimize age-based layoff decisions. In Sharp v. Aker Plant Services Group, Inc., No. 11-5419 (6th Cir. Aug. 9, 2013), the employer selected employees for layoff in response to a business downturn. When the plaintiff asked the manager why he had been selected for layoff instead of […]

EEOC Silent on Sanctions

By John Alan Doran For an agency that refuses to settle claims without a press release bragging about the settlement, the EEOC suddenly dummies up when it loses big. A recent decision highlights this hypocrisy. A federal court imposed a $4.7 million award for attorneys’ fees and costs (you read that correctly–$4.7 million) against the […]

Cat’s Paws and Other Shadow Puppets

By Bill Wright We’re familiar with cat’s paw theories of liability: a plaintiff might prove he or she has been subjected to discriminatory treatment (even though the decision maker obviously lacked any animus) by showing that a co-worker had a discriminatory animus and caused the plaintiff to get fired. One recent plaintiff took it a […]

Have It Your Way

By Elizabeth Chilcoat Employers may enforce their own requirements for calling in absences, even if those requirements require an employee to do more than the FMLA ordinarily requires. In Srouder v. Dana Light Axle Mfg., No. 12-5835 (6th Cir. August 7, 2013), an employee claimed that his employer interfered with his use of FMLA leave […]