February, 2023

No job description? No problem. See why this employer had no duty to accommodate.

February 28, 2023 | by Eric B. Meyer

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The Americans with Disabilities Act bars employers from firing someone because they have a disability. It also requires employers to provide workplace accommodations to otherwise “qualified” individuals with actual disabilities unless going so would create an undue hardship. Someone who is “qualified” can perform the job’s essential functions with or without an accommodation.

Put another way, if the employee can’t do the job with or without help, then the ADA doesn’t protect them – as one employee recently found out the hard way. Continue reading

Documentation and communication FTW! (Well, good enough.)

February 27, 2023 | by Eric B. Meyer

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After completing a 90-day orientation program for newly licensed nurses, a woman was denied a full-time position as a Registered Nurse (RN) at a hospital and, instead, transferred into a lower-paying position at another facility that the same employer operated.

The woman — we’ll call her “Plaintiff” as we usually do here — alleged race discrimination under Title VII of the Civil Rights Act of 1964.

A plaintiff asserting a Title VII claim for race discrimination must present a convincing mosaic to the factfinder that race motivated the adverse employment action — in this case, the denial of the full-time RN position.

This employee apparently doesn’t understand how pregnancy discrimination works

February 24, 2023 | by Eric B. Meyer

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I won’t bury the lede. Here’s the takeaway from this post. If an employer doesn’t know that an employee is pregnant, it can’t possibly discriminate against her because she is pregnant. Continue reading

How can an employee make $200K, PLUS overtime?!? The Supreme Court explains…

February 23, 2023 | by Eric B. Meyer

Image by Clker-Free-Vector-Images from Pixabay

A company operating an offshore oil rig paid one of its “tool pushers” anywhere from $963 to $1,341 per day. His paycheck, issued every two weeks, amounted to his daily rate times the number of days he had worked in the pay period. So if the employee had worked only one day, his paycheck would total (at the range’s low end) $963; but if he had worked all 14 days, his paycheck would come to $13,482. Under that compensation scheme, the company paid the employee over $200,000 annually, with no overtime compensation.

But, the employee who supervised many others and otherwise satisfied the duties tests for the executive exemption under the Fair Labor Standards Act sued for unpaid overtime because, he claimed, the company failed to guarantee him at least $455 per week in salary. Continue reading

I’m willing to bet that, as of yesterday, most of your severance agreements are UNLAWFUL

February 22, 2023 | by Eric B. Meyer

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On February 21, the National Labor Relations Board decided (here) that nondisparagement and confidentiality provisions in a severance agreement that businesses give to employees are unlawful. Continue reading

Are you in the clear waiting four weeks to fire someone who complained about sexual harassment?

February 21, 2023 | by Eric B. Meyer

I’ve got some ‘splaining to do before we get into the meat and potatoes. Continue reading

New Jersey created something called a “Temporary Workers’ Bill of Rights.” What is it?

February 17, 2023 | by Eric B. Meyer

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Last week, Governor New Jersey Phil Murphy’s office announced “a significant step for vulnerable workers in New Jersey” when the Governor signed A1474/S511, commonly referred to as the “Temporary Workers’ Bill of Rights.” Continue reading

Did a union non-profit refuse to accommodate a woman with breast cancer and force her to resign? The EEOC thinks so.

February 16, 2023 | by Eric B. Meyer

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I read on the U.S. Department of Labor website that unions help employees improve the workplace with “enhancements” such as “flexible scheduling, protections against harassment and safer working conditions – that improve the quality of jobs and workers’ well-being.”

However, a union non-profit that touts itself as a provider of help to workers with health problems allegedly violated the Americans with Disabilities Act (ADA) by discriminating against an employee based on her disability, breast cancer.

Now, the U.S. Equal Employment Opportunity Commission is suing!

Let’s talk about whether you are paying teleworking employees properly.

February 15, 2023 | by Eric B. Meyer

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The U.S. Department of Labor’s Field Assistance Bulletin on employee telework is the blogging gift that keeps on giving. Continue reading

If you are tracking FMLA leave THIS WAY, you may be doing it WRONG!

February 14, 2023 | by Eric B. Meyer

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Thank you for indulging me a day off from blogging yesterday. It’s tough to bounce right back when a referee rips your heart out of your chest with a ridiculous penalty call late in the fourth quarter of arguably the best Super Bowl game of all time.

At least I’m not salty about it.