Leave as a Reasonable Accommodation under the ADA

In May 2016, the Equal Employment Opportunity Commission (“EEOC”) published “Employer-Provided Leave and the Americans with Disabilities Act” The EEOC published the guidance as it observed a “troubling trend:” employment policies that deny or restrict leave as a reasonable accommodation for employees with disabilities.  It has been a year since this guidance was published and it is worth revisiting this issue.

The issue arises as follows.  An Employer determines whether an employee is eligible for or has exhausted her Family Medical Leave Act (“FMLA”) leave.  If the employee is ineligible or has exhausted her FMLA leave, the employer may deny the employee’s request for leave without consideration of the requirements of the ADA.

The ADA requires, among other things, that employers provide “reasonable accommodations” to employees with disabilities if doing so will allow the employees to perform their essential job functions.  An exception exists if the accommodation would cause the employer “undue hardship.”

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Does Your Social Media Policy Apply Globally?

The surprising EU perspective

Drafting a global social media policy is a balancing act. Employers need to protect their legitimate business interests, but must do so with respect for the employees’ rights to freedom of expression. Striking the right balance depends on the legislation in force in the different countries where your company is active. Compared to the strong focus on protecting employees’ rights in the scrutiny of social media policies in the US, social media policies can go much further in protecting legitimate business interests in Europe. If you have a US company that is active in Europe, you may want to rethink your social media policy for your European entities.

In the US, the standard for what is allowed to be included in social media policies is largely shaped by the National Labor Relations Board (“NLRB”), which is responsible for enforcing the National Labor Relations Act (“NLRA”). The NLRB has given a broad interpretation to the employees’ right to engage in concerted activities under Section 7 of the NLRA. The NLRB finds provisions of social media policies unlawful if they would have a chilling effect on the employees engaging in the activities protected under Section 7. This leads to provisions being struck down by the NLRB because of their wording or for being overly broad.

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Third Circuit Holds that Medical Resident May Bring a Title IX Claim Against a Private Hospital

Earlier this month, the Third Circuit Court of Appeals reversed the lower court’s dismissal of a medical resident’s Title IX suit against Mercy Catholic Medical Center in Philadelphia, which alleged that the plaintiff was kicked out of the hospital’s residency program in retaliation for denying a superior’s sexual advances.  See, Doe v. Mercy Medical Center.

The decision is significant for two reasons: it holds that Title IX is applicable to a private hospital, and also held that the resident was not required to satisfy Title VII’s administrative prerequisites (i.e. file a charge with the EEOC or state agency) before suing the hospital.   Each of these findings opens the door to increased claims against hospitals who sponsor educational programs.

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Law360 Mentions Partner Mark Konkel as Counsel to Saks in Proposed Wage and Hour Class Action

Partner Mark Konkel was mentioned as Saks Fifth Avenue’s defense counsel in a newly-filed wage-and-hour class action in the Law360 article “Saks Hit With NY Wage Class Action Over Sales Commissions.” The high-end retailer has been accused of violating New York state labor law at its flagship department store in Manhattan. Mr. Konkel and a Kelley Drye litigation team defeated these same claims in federal court in 2016.

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Your Employee is Leaving…. How Do You Safeguard Your Company’s IP?

It is a fact: employees leave.  According to the Bureau of Labor Statistics, the average worker currently holds ten different jobs before age forty.[1]  Because employee transitions are inevitable, businesses must prepare to secure their data when an employee exits the company.  Otherwise employers risk having their information (e.g., customer lists and related information, research and development, and strategic business development) stolen.  Stolen information can lead to the loss of competitive advantage, embarrassment and devaluation of image and goodwill, reduced profitability, and loss of core business technology.  These types of damages are difficult to ascertain in monetary terms.

Data is protected by (1) common law, (2) statutory law (e.g., Uniform Trade Secrets Act, Economic Espionage Act, Computer Fraud and Abuse Act, and state criminal codes), and (3) contractual agreements (e.g., non-compete, non-solicitation of clients).  While the law protects your data, a lawsuit to enforce such protection can be costly and time consuming with uncertain outcomes.  Thus, preemptive planning is the best defense.

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Andrew Puzder Withdraws Candidacy for Labor Secretary; Trump Taps Former U.S. Attorney Alexander Acosta

On February 15, 2017, just one day before his confirmation hearing, Andrew Puzder announced that he was withdrawing his nomination to serve as President Donald Trump’s Labor Secretary. Puzder is the CEO of CKE Restaurants, which operates fast-food restaurants Carl’s Jr. and Hardee’s.

Like many of President Trump’s Cabinet picks, Puzder faced fierce opposition from Democrats, as well as unions and worker advocacy groups. The opposition came as no surprise, as Puzder publicly opposed government regulation, a $15 minimum wage increase and the Affordable Care Act, and recently revealed that he hired an undocumented housekeeper. Puzder was also criticized for alleged labor law violations, including unpaid overtime, which occurred at CKE Restaurants under his leadership.

Shortly before announcing his withdrawal, it was reported that Senate Republicans encouraged the Trump administration to pull the nomination since a growing number of Republican senators were uncertain they would vote in favor of Puzder, which jeopardized his confirmation.

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New EEOC Chair Says There Will be No “Major Changes” But – the DOJ Seems to be Calling a Truce in the Transgender Battle – What Direction Are We Heading?

Are we getting a mixed message from the new administration on priorities in the civil rights area?

In her first public comments since her appointment as the new acting chair of the EEOC, Victoria Lipnic just last week (February 8) said that the agency will not be making major changes and “is committed to its core values and mission, to enforce civil rights laws in the workplace.”

Yet – just a few days later on Sunday, February 11, The New York Times reported that the new administration has decided not to appeal a nationwide injunction issued by a judge in Texas to block Department of Education guidelines which stated that schools had to give transgender students access to facilities according to their chosen gender, as a matter of law.  It is not clear now whether this signals that the Trump administration’s position on transgender rights, a significant initiative of the EEOC in the Obama administration, will change and what position the new DOJ will take in the Grimm v. Gloucester County case, now pending before the US Supreme Court.

One is a statement from one agency and the other is a decision by another, but clearly there is going to be a shift of focus and priorities.

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What’s in a “Like”?: Tips for Employers and In-House Counsel in Crafting Social Media Policies

Your colleagues are on social media.  Ninety-seven percent of online adults aged 16-64 say they have visited or used a social network within the last month.[1]  Because social media continues to grow and constantly evolves, employers need to take a proactive approach to reduce risk and exposure to litigation related to social media.

In recent years, the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have made it clear that employees’ rights in “traditional offline communications” and communications over social media are afforded the same protections.

The NLRB is responsible for enforcing the National Labor Relations Act (“NLRA”), which prohibits discipline against employees who engage in “protected concerned activities.”  Protected Concerned Activities are conversations and efforts to organize around terms or conditions of employment (i.e. wages, benefits, staffing, etc.).  Examples of protected concerted activities on social media include posts relating to employee staffing levels implicating working conditions and posts regarding complaints and criticism about supervisor’s attitude and performance.  Often, the NLRB finds employers’ policies “overly broad” and “vague” and concludes employees would reasonably believe the policy restricts them from engaging in protected concerted activity.  Employers are most likely to have overly broad and vague provisions related to defamation, disparagement, confidentiality, and inappropriate e-mails or discussions.

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Title VII and Sexual Orientation – Front and Center at the Second Circuit on Inauguration Day

As President-Elect Donald Trump moved into the White House on Inauguration Day last Friday, the excitement and political tensions were not confined to the nation’s capital.  LGBTQ rights supporters decorated with rainbow ties and socks filled the Second Circuit courtroom that morning to hear oral argument on a charged issue in Matthew Christiansen v. Omnicom Group, Inc. et al., No. 16-748-cv.

In this case, Matthew Christiansen, a homosexual advertising executive, sued his employer, DDB Worldwide Communications Group Inc., for discrimination based on sexual orientation under Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination by an employer against an employee on the basis of “sex,” but does not explicitly prohibit discrimination on the basis of “sexual orientation.”

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Happy New Year and Be Aware of New NY State Salary Thresholds

NEW EXEMPT SALARY THRESHOLD – As the ball is dropping in Times Square, wage and hour regulations are changing for employers in New York.

The New York Department of Labor has made it clear that on December 31, 2016, at 12:01 am, – new DOL regulations that raise the salary threshold necessary for employees to be “exempt” from overtime pay requirements will rise significantly for most private employers in New York.

We previously covered in this blog the December decision by a Texas judge to enjoin the implementation of federal regulations which would have raised those salary thresholds for exempt employees. While that was unexpected good news for many employers, New York employers did not receive a similar holiday gift.  Our state DOL is going to implement its new salary thresholds, so New York employers must take note and adjust salaries if they wish to maintain the exempt status of their employees.

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