The Ninth Circuit Court of Appeals yesterday held in Lopez v. Pacific Maritime Association that an employer’s one-strike drug testing policy for applicants does not violate the Americans With Disabilities Act (“ADA”). The one-strike policy in question stated that the company would never hire any applicant who tested positive on a pre-employment drug screening. All applicants were
Ninth Circuit Approves of “Preemptive” Fitness for Duty Examination
Yesterday the Ninth Circuit Court of Appeals issued a decision approving of an employer’s use of a "preemptive" fitness for duty examination for an employee who exhibited bizarre and erratic behavior in the workplace, even though that behavior had not yet impacted his job performance. Click here to read the full opinion in Brownfield v. City
Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana
Yesterday the Oregon Supreme Court conclusively ruled that employers are not required to accommodate the use of medical marijuana in the workplace, ending years of doubt and confusion on this critical issue. Click here to read the Court’s opinion in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries.
In Emerald Steel
President Obama Uses Recess Appointments to Fill NLRB, EEOC Seats
This week President Obama announced that he would make recess appointments to fill vacancies on the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). The move allows the White House to bypass the Senate confirmation process, which promised to be extremely contentious.
The appointments will add two Democratic members to the
9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases
The Ninth Circuit Court of Appeals recently limited the remedies available to employees who sue for retaliation under the Americans with Disabilities Act (ADA), ruling that the statute does not provide for punitive damages, compensatory damages or a jury trial in ADA retaliation cases. Click here to read the decision in Alvarado v. Cajun Operating Co.
Mr. Alvarado worked as a cook in defendant’s restaurant. He complained after his supervisor made allegedly discriminatory remarks related to his age and disability, and shortly afterward he received several disciplinary write-ups for poor performance. After Mr. Alvarado was ultimately terminated, he sued his former employer for, among other things, retaliation under the ADA. Prior to trial, the federal district court granted defendant’s motion in limine, barring plaintiff from seeking punitive and compensatory damages, and a jury trial, on his ADA retaliation claim on the grounds that the statute provided only equitable relief for such claims.
The Ninth Circuit affirmed the district court’s ruling by holding that the plain, unambiguous language of the ADA remedy provisions specifically enumerate only those sections of the act for which compensatory and punitive damages (and a jury trial) are available, and that the ADA anti-retaliation provision is not included in that list. Somewhat surprisingly considering the laws at issue have been on the books since 1991, the Ninth Circuit appears to be only the third Circuit Court of Appeals to have been presented with the issue, after the Seventh and Fourth Circuits (which reached similar conclusions). The court also noted that several district courts in other circuits had reached the opposite conclusion (perhaps most surprising of all), by ignoring the text of the remedy provision and instead emphasizing the overall structure of the ADA and the “expansive” intent of the 1991 amendments.
For now, the law in the Ninth Circuit on this question is clear: while still entitled to compensatory or punitive damages in disability discrimination or failure to accommodate claims under the ADA, employees may not receive those damages for ADA retaliation claims.Continue Reading 9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases
Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010
Wow, it’s Festivus already, which means that in just a few short days it will be a brand new year! We have a Festivus present for Oregon employers to help you get ready: Ten things you need to know for 2010! (click on each blue hotlink for more information)
- All Oregon employers are required to post the SB
9th Circuit: Independent Contractor Can Assert Disability Claim Under Rehabilitation Act
The Ninth Circuit Court of Appeals ruled recently that an independent contractor may assert a disability claim against an employer under the Rehabilitation Act. Click the link to read the opinion on Fleming v. Yuma Regional Medical Center.
The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in
Oregon BOLI Files Multiple Proposed Rule Changes
The Oregon Bureau of Labor and Industries has filed several proposed rules pertaining to labor and employment law, and is inviting public comment. Click on the title of each to read the proposed rule:
- Religious worship, child support obligors, physical accommodations for eligible disabilities. The proposed rules would implement statutes:
- requiring employers to reasonably
EEOC Updates H1N1 Guidance
The H1N1 virus (aka "swine flu") continues to spread. Is your workplace prepared? Are your policies and procedures legally compliant? In order to help employers, the Equal Employment Opportunity Commission (EEOC) updated its guidance for employers titled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act." (Click title to download). The EEOC guidance answers
EEOC Proposes Rules Implementing ADAAA; Seeks Public Comments
The Equal Employment Opportunity Commission (EEOC) will in today’s Federal Register publish proposed regulations implementing the ADA Amendments Act (ADAAA). The public will have 60 days – or until November 23, 2009 – to submit comments. Click here to read the full text of the proposed regulations.
Congress intended that ADAAA, which took effect