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Cantankerous employees beware! Being a jerk is not a disability and, at least according to the Ninth Circuit in Weaving v. City of Hillsboro, blaming bad behavior on a physical or mental impairment does not guarantee protection under the Americans with Disabilities Act ("ADA").

Matthew Weaving was diagnosed with ADHD as a child, but stopped exhibiting symptoms at the age of 12 and was taken off of his ADHD medication. His interpersonal problems continued through adolescence and into adulthood. Weaving pursued a career as a police officer and eventually joined the Hillsboro (Oregon) Police Department in 2006. His relationship with subordinates and peers was strained. Co-workers complained that he often was demeaning and derogatory. Following a subordinate’s complaint about Weaving in 2009, the Police Department placed him on leave pending investigation.

While on leave, Weaving decided that some of his interpersonal difficulties might have been due to ADHD so he sought a mental health evaluation. The psychologist concluded that Weaving had adult ADHD and sent a letter to the police department explaining his diagnosis. The next day, Weaving sent a letter informing his employer about the diagnosis and requesting “all reasonable accommodations.”

A few weeks later, the police department concluded its investigation, finding that Weaving had created and fostered a “hostile work environment for his subordinates and peers,” noting that they described him as “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” Following a fitness for duty examination in which two doctors found Weaving fit for duty despite his ADHD diagnosis, the police department terminated Weaving’s employment.Continue Reading “Isn’t there supposed to be a good cop?” — 9th Circuit Holds Bilious Conduct Not a Disability Under ADA

Employers in Washington should take note of last week’s decision from the Washington State Supreme Court holding that state law allows a claim for failure to reasonably accommodate an employee’s religious practices. That result is hardly surprising, but how the Court reached that result, and its other conclusions along the way, will complicate how businesses in Washington operate. While the obligation to accommodate employees’ bona fide religious practice has existed under federal law since at least the early 1970s, smaller employers not subject to Title VII must now comply — and all employers are now subject to suit for such claims in Washington state courts.Continue Reading Washington State Supreme Court’s Decision on Religious Accommodation: What It Means for Employers

The NLRB’s Regional Director in Chicago issued a decision on March 26 in 13-RC-121359 finding the football players at Northwestern University are employees under the NLRA, over the objections of the University. The Regional Director rejected the University’s arguments that the players, who receive “grant-in-aid scholarships” from the University, are more akin to graduate students, held by the Board not to be employees in Brown University, 342 NLRB 483 (2004). The Director also rejected the University’s argument that the players were “temporary employees” who were not eligible for collective bargaining. 

Northwestern’s varsity football team consists of 112 players, 85 of whom receive scholarships that pay for their tuition, fees, room, board, and books in the amount of $61,000 per year ($76,000 per year if they take summer classes). The players receive a “tender” letter at the beginning of their football career that describes the terms and conditions of the offer; are subject to certain rules of conduct; and spend 20-25 hours a week in mandatory activities in the off-season, 40-50 hours per week during the season, and 50-60 hours per week during training camp. The Director found that the players performed “services” for the University that generated revenues of approximately $235 million during the nine-year period of 2003-2012 through the team’s participation in the NCAA Division I and Big Ten Conference through ticket sales, television contracts, merchandise sales, and licensing agreements.Continue Reading College Football Players Are Employees? Who’s Next?

As described by my colleague Howard Bye-Torre in his client advisory published earlier today, Mark Mazur, Assistant Secretary for Tax Policy at the Treasury Department announced in a Tuesday blog post that the effective date for imposing employer pay-or-play penalties (also known “shared responsibility payments”) will be delayed by the IRS until 2015.

The IRS is expected to…

The Occupational Safety and Health Administration (OSHA) issued an interim final rule and request for comments regarding procedures for handling employee whistleblower complaints under the Affordable Care Act (ACA), Section 1558. This part of the ACA added a new Section 18c to the Fair Labor Standards Act (FLSA), which protects employees from retaliation for exercising certain rights under the ACA, including (1) receiving a federal tax credit or subsidy to purchase insurance through the employer or a future health insurance exchange, (2) reporting a violation of consumer protection rules under the ACA (which, for instance, prohibit denial of health coverage based on preexisting conditions and lifetime limits on coverage), and (3) assisting or participating in a proceeding under Section 1558.

The interim final rule states the time frames and procedures for bringing a whistleblower complaint under Section 18c and covers the investigation, hearing, and appeals processes. An employee has 180 days from the date of the alleged retaliation to bring a whistleblower complaint to the Secretary of Labor. Where a violation is found, remedies can include reinstatement, compensatory damages, back pay, and reasonable costs and expenses (including attorneys’ fees). If the employee brought the complaint in bad faith, an employer may recover up to $1,000 in reasonable attorneys’ fees.Continue Reading OSHA Issues Interim Final Rules on Whistleblower Protection Provisions Under ACA

Several weeks ago the U.S. Court of Appeals for the 11th Circuit weighed in on the ongoing debate in labor law over the definition of who is a “supervisor,” and therefore not eligible to join a union, under the federal National Labor Relations Act (“NLRA”). The opinion, Lakeland Health Care Associates , is but the latest installment in an area of labor law that has been evolving over at least the past decade.  While this line of cases, including Lakeland Health Care, are specific to the “supervisor” status of nurses working in the residential care industry, the relevant legal tests are the same for all industries. Employers who may wish to oppose unionization efforts among employees it believes are supervisors will therefore want to continue to pay close attention to these cases to see what could be done to maximize the chance that the National Labor Relations Board (“NLRB” or “Board”) would also find those employees are supervisors. 

LPNs Supervise Other Employees, But Are They “Supervisors” Under The NLRA?

As with many things in labor law, determining who is a “supervisor” is rarely straightforward: simply giving someone the title of “supervisor” is never enough. In many cases employees may have only partial supervisory authority—the issue in cases like Lakeland Health Care is whether the employees had enough supervisory authority to be “supervisors” under the NLRA.Continue Reading 11th Circuit Disagrees With NLRB And Finds Nurses Are “Supervisors” In Lakeland Health Care Decision

Most employers grapple with the better-known aspects of the Family and Medical Leave Act (FMLA), such as determining whether an employee’s illness constitutes a serious medical condition, obtaining required certification or providing adequate coverage for workers on intermittent leave. All too often employers focus on the leave itself and breathe a sigh of relief when notice is provided confirming the dates of leave or when the employee has resumed his or her usual schedule. But an employer’s compliance with federal law includes the obligation to maintain adequate records related to the leave. Failure to do so can have significant consequences.

What Records Must You Keep?

FMLA recordkeeping requirements can be found in a single regulation, 29 C.F.R. § 825.500. That regulation requires employers to keep and preserve records in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA).  Records must be retained for no less than three years. Although no particular order or form is required, the records must be capable of being reviewed or copied. 

Covered employers with eligible employees must also maintain records that include basic payroll and data identifying the employee’s compensation. Failure to maintain accurate records can have significant consequences for employers, who have the burden of establishing eligibility for leave. Accuracy is important:  for example, the regulations demand that records document hours of leave taken in cases of leave in increments less than a full day.  Lack of suitable records documenting when leave was taken can also doom an employer’s defense to claims for leave. Special rules apply to joint employment and to employees who are not covered by or are exempt from the FLSA.Continue Reading Recordkeeping: The Often Overlooked Element of FMLA Compliance

As everyone who was not on Mars this summer knows, the U.S. Supreme Court issued a surprising and historic decision upholding key provisions of President Obama’s Affordable Care Act ("ACA").  To help employers navigate the requirements of the law now that it has the stamp of approval of the Supreme Court, and to provide other updates…

As many of you know, the Equal Employment Opportunity Commission (EEOC) has been on an aggressive tear of late on a broad range of issues.  In addition to upping its investigations of charges of individual “disparate treatment” discrimination, it is undertaking a number of new initiatives that show a renewed focus on facially neutral employer…

For many new moms returning to work after the birth of a child, pumping breast-milk is considered to be a necessary evil.  Necessary because pumping ensures that these mothers’ babies can continue to experience the many benefits of breast-milk, and helps the mothers to maintain their milk supplies, relieves painful engorgement, and prevents potentially serious …