Sixth Circuit Holds That Ford Motor Co. Was Not Required to Accommodate Telecommuting

On April 10, 2015, in an eagerly awaited decision interpreting the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), the United States Court of Appeals for the Sixth Circuit ruled, en banc, in favor of Ford Motor Co., rejecting the EEOC’s claim that Ford violated the ADA by not allowing a disabled employee to telecommute as a reasonable accommodation.  EEOC v. Ford Motor Co., No. 12-2484.  Eight judges on the Sixth Circuit ruled in favor of Ford, while five dissented.  The decision highlights many of the thorny issues concerning telecommuting as a potential reasonable accommodation under the ADA.  It also underscores the importance of engaging in a good faith “interactive process” with a disabled employee requesting accommodation. Continue Reading

The NLRB’s Changes to Representation Case Procedures

Beginning on April 14, 2015, the National Labor Relations Board’s (“NLRB” or the “Board”) new representation case procedural rules will be applied to all representation petitions filed thereafter.  While the NLRB insists that the new rules “remove unnecessary barriers to the fair and expeditious resolution of representation cases” and “simplify representation-case procedures,” a closer reading of the rules makes it clear that they are designed to place a more onerous burden on employers during the representation case process.  Examples of the increased burden on employers include, but are not limited to: Continue Reading

New Illinois Laws in 2015: What Employers Should Know

Ban the Box

Joining the current “Ban the Box” trend, effective January 1, 2015, the Job Opportunities for Qualified Applicants Act prohibits Illinois employers from asking job applicants about their criminal record or criminal history until after the employer determines that the individual is qualified for the position and notifies the individual that s/he has been selected for an interview.  If an employer does not conduct interviews, then any inquiry into an applicant’s criminal background cannot take place until after the employer makes a conditional offer of employment. Continue Reading

Supreme Court Crafts Modified McDonnell Douglas Analysis to Handle Pregnancy Discrimination Claims

On March 25, 2015, the Supreme Court of the United States issued a long-awaited decision in Young v. United Parcel Service, Inc., wherein the Court vacated the Fourth Circuit’s decision to affirm UPS’s successful motion for summary judgment.  The plaintiff, Peggy Young, had worked as a part-time driver for United Parcel Service (“UPS”).  Part of her job required her to be able to lift packages of up to 70 pounds.  After becoming pregnant in 2006, however, Young’s doctor advised her that she should not lift more than 20 pounds.  UPS maintained a light duty policy (the “Policy”) which provided accommodations to employees who suffered on-the-job injuries or had disabilities covered under the Americans with Disabilities Act (“ADA”).  Young requested an accommodation under the Policy for her lifting restriction, but UPS refused, causing Young to stay home for most of her pregnancy without pay.  Young eventually filed a discrimination lawsuit, relying on the Pregnancy Discrimination Act (“PDA”), an amendment to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, (“Title VII”), claiming that UPS failed to accommodate the lifting restriction stemming from her pregnancy while still “accommodat[ing] other drivers who were similar in their . . . inability to work.” Continue Reading

Arbitration Agreement With PAGA Waiver And Opt Out Provision Deemed Unenforceable

Last month, a California Court of Appeal invalidated an arbitration agreement for including a representative action waiver combined with a non-severability clause.

Background

In Securitas Security Services USA, Inc. v. Superior Court (Edwards), 2015 Cal.App.LEXIS 190 (Cal. App. 4th Dist. Feb. 27, 2015), the employee, Edwards, signed an arbitration agreement from her employer, Securitas Security Services USA, Inc.  The agreement featured the following relevant clauses. Continue Reading

NLRB “Quickie Election” Rule Accelerates the Union Organizing Process

In December 2014, the National Labor Relations Board (“NLRB”) announced new rules governing “Representation—Case Procedures.”  The new rules—set to take effect in just under a month, on April 14, 2015—have been commonly referred to as “quickie” or “ambush” election rules, as they will significantly increase the speed at which the union election process moves.  The Republican-led Congress has been working to block the new rules from taking effect, but the expectation is that even if such a bill passes both the House and the Senate, it is likely to be met with a Presidential veto.  Legal challenges to the new rules are also pending in federal courts, including one lawsuit by the U.S. Chamber of Commerce and other trade organizations in the U.S. District Court for Washington D.C. (Case No. 1:15-cv-9), and another by a group of trade associations in U.S. District Court for the Western District of Texas (Case No. 1:15-cv-26).  As of this writing, however, no court has acted to stop or delay implementation of the rules, and although motions for summary judgment are pending in both cases, no hearings have been set and it is not clear when either Court will rule on the respective motions.  At this point, employers should operate under the assumption that the new rules will indeed take effect on April 14, 2015. Continue Reading

Uber, Lyft Decisions Highlight Difficulty of Classifying Workers in the Modern Economy

“The test the California courts have developed over the 20th Century for classifying workers isn’t very helpful in addressing . . . 21st Century problem[s].”  So concluded the court in Cotter v. Lyft, Inc., one of two opinions handed down by the U.S. District Court for the Northern District of California on March 11, 2015, that highlight a growing problem in employee misclassification law. Continue Reading

Supreme Court of New Jersey Adopts Faragher/Ellerth Affirmative Defense

On February 11, 2015, the Supreme Court of New Jersey expressly adopted the test created by the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The Faragher/Ellerth defense provides an employer with an affirmative defense to vicarious liability for a supervisor’s sexual harassment.  In Aguas v. State, No. 072467,  2015 WL 659543, at *1 (N.J. Feb. 11, 2015), the New Jersey Supreme Court ruled, for the first time, that the Faragher/Ellerth affirmative defense was viable under New Jersey law.  In reaching this decision, the New Jersey Supreme Court addressed two issues which it had not previously ruled upon: (i) the impact of an employer’s anti-harassment policy for purposes of negligence, recklessness, or vicarious liability claims, and (ii) which factors trial courts should apply in determining if an employee will be considered a supervisor for a hostile work environment sexual harassment claim. Continue Reading

U.S. Supreme Court Holds Agency Interpretations Are Not Subject To Notice-and-Comment Rulemaking Requirement

In 2004, the DOL revamped its regulations regarding the Fair Labor Standards Act (FLSA) administrative exemption.  In 2006, the Bush DOL issued an opinion letter finding that mortgage loan officers qualified for the administrative exemption.  In 2010, the Obama DOL withdrew the 2006 opinion letter and issued an Administrator’s Interpretation finding that mortgage loan officers did not qualify for the administration exemption.  The Mortgage Bankers Association’s (MBA) challenged the 2010 interpretation arguing that it was invalid under Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (1997) because it significantly altered the DOL’s 2006 opinion letter and it was issued without employing the notice-and-comment procedures required by the Administrative Procedures Act (APA).  The district court rejected the argument, finding that the MBA had not demonstrated substantial and justifiable reliance on a well-established agency interpretation. The D.C. Circuit reversed, finding that reliance is but one factor courts must consider in assessing whether an agency interpretation qualifies as definitive.  Continue Reading

California Makes Anti-Bullying Training A Component Of Mandatory Harassment Training

California employers with more than 50 employees must include “abusive conduct” prevention training in their mandatory harassment prevention training.  Assembly Bill No. 2053 expanded the scope of training required by Government Code Section 12950.1, which requires employers with 50 or more employees to provide at least two hours of harassment prevention training to supervisory employees for every two years, to also require “abusive conduct” prevention training.  Continue Reading

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