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ADA Does Not Require Employers to Provide Multi-Month Leave Beyond Expiration of FMLA Leave – Seventh Circuit

This week the 7th Circuit Court of Appeals issued a decision helpful to employers grappling with whether they must extend an employee’s time off following the expiration of Family and Medical Leave Act (FMLA) leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  See Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir., Sept. 20, 2017).

In Severson, the court found that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”  Plaintiff, Severson, had a physically demanding job working for a fabricator of retail display fixtures.  Severson took twelve weeks of FMLA leave due to serious back pain.  During his leave, he scheduled back surgery (to occur on the last day of his FMLA leave), and requested an additional three months of leave.  Defendant, Heartland, denied Severson’s request to continue his medical leave beyond the FMLA entitlement,

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Some States and Municipalities Begin the Ban on Salary History Inquiries

September 19, 2017

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Many employers base an employee’s pay on his or her past salary.  Applicants are typically asked, either on the application or during an interview, how much they made in their previous job(s).  Critics of this practice believe using salary history to set current salary is discriminatory and prohibits women and minorities, frequently paid less than their white male counterparts, from overcoming pay disparity.

In April 2017, in Rizo v. Yovino, the 9th Circuit Court of Appeals held that salary history is a valid justification for paying a female employee less than her male counterpart, so long as the employer’s use of the salary history was reasonable and accomplished a business purpose.  Several states and municipalities, perhaps in response to Rizo, have enacted and/or proposed legislation prohibiting the practice of asking applicants about their salary history.  Other states and municipalities previously banned this practice.

In June 2017, both Delaware and Oregon

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Starting Up – Set Up Part 3

September 11, 2017

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Starting Up – Set Up Part 3

September 11, 2017

Authored by: Bryan Cave At Work

Part One of this series focused on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires. In Part Two, we dove into drafting job descriptions and their use in determining whether a position should be classified as exempt or non-exempt under federal and local wage and hour laws. In Part Three, the final post in this three-part series, we’re examining the specifics involved in extending an employment offer. Whether it’s your first time or your twenty-first time, making a job offer is exciting−you’ve finally found your ideal candidate and are looking forward to a bright future together!  But the start of the employment relationship also starts the clock on a number of employer obligations and opportunities.

For example, certain states require employers to provide their employees with written notice of certain job-specific information at the

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Investigate FMLA Fraud? Absolutely! But…

September 8, 2017

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Courts have repeatedly affirmed employers’ right to investigate the perceived misuse or abuse by employees of leave under the Family and Medical Leave Act (“FMLA”).  After all, while eligible employees have the right to take FMLA leave, employers have the right to ensure that FMLA leave is used only for a proper purpose.

Of course, an investigation may lead to the conclusion that an employee has engaged in FMLA fraud, and thus may result in discipline – even termination – of the employee.  If the employee subsequently pursues a legal claim against the employer, the investigation itself will no doubt be subject to scrutiny, including for purposes of determining whether the employer acted on an “honest belief” that the employee had misused FMLA leave.

Accordingly, here are some tips for conducting an investigation into perceived FMLA fraud:

  • Have a solid basis for initiating an investigation. FMLA investigations should not
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ECHR Ruling: Dismissal Based on Monitoring of Employee’s Communications Illegal

September 6, 2017

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Be aware!  Today’s decision of the European Court of Human Rights (“ECHR”) may force companies to rethink their policies on private internet use of their employees at work (No. 61496/08).

The Straßburg court held a termination for private internet use is illegal. What’s new and striking is that the Rumanian employee chatted with family friends using his business email account.

Over the past few years employers took various measures de-linking private from business internet use to follow urgent compliance needs. In many instances, they introduced strictly separated internet access to allow legitimate monitoring of pure business accounts to follow, among other things, the increasing demands of their own e-discovery officers.

Does today’s decision of the ECHR put an end to all practical and legitimate chat and email monitoring of business accounts for compliance needs? The answer is no.  But the ECHR stressed that employers must take appropriate measures when monitoring

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Starting Up – Set Up Part 2

September 4, 2017

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Starting Up – Set Up Part 2

September 4, 2017

Authored by: Bryan Cave At Work

This three-part series highlights the steps startups should take before hiring their first employee. Part One of this series focused on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires. In this Part Two, we’re diving into drafting job descriptions and their use in determining whether a position should be classified as exempt or non-exempt under federal and local wage and hour laws.

A well-drafted job description provides employees and employers alike with a wealth of information, including the necessary qualifications, responsibilities, and pay rate of the relevant position.  The drafting alone is a great exercise for small companies to think about how they want to distribute their work.  Job descriptions can also serve the basis for – and later support – the classification of a position as exempt under wage and hour laws.

The federal Fair

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Starting Up – Set Up Part 1

Starting Up – Set Up Part 1

August 28, 2017

Authored by: Bryan Cave At Work

So you’ve decided to take your company to the next level by expanding your staff.  Great!  But being an “Employer” under the law is more than just a title, so before you extend your first offer, make sure your startup is set up for success.  Part One of this three-part series will focus on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires.

First, the Internal Revenue Service (“IRS”) requires every employer to have an employment identification number (“EIN”).  An EIN, sometimes referred to as a Federal Tax Identification Number, is required to report business and employee tax information.  As such, any new employer’s first task should be to obtain an EIN. After applying for a federal EIN, new employers should confirm whether the state in which they conduct business also requires employers to obtain local EINs. 

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Are Head Lice a Disability? Navigating the Americans with Disabilities Act.

August 25, 2017

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What if you had an employee who kept coming to work with head lice?  What should you do?  Employment lawyers get all kinds of questions about the Americans with Disabilities Act—and some of these can give you a serious case of the heebie-jeebies.  Here is a short tutorial on the basics of navigating this important law, seen through the lens of that bane of parents everywhere: the louse.

Under the ADA, a disability is (1) “a physical or mental impairment” that (2) “substantially limits one or more of the major life activities of such individual.”  Under this test, the claimant must first prove that he or she has a physical or mental impairment, which is defined as “any physiological disorder or condition.”  But what qualifies as a physiological disorder or condition?   According to the Merriam-Webster dictionary, “physiological” means relating to “the organic processes and phenomena of an organism or any

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Oregon is First State to Pass Predictable Scheduling Law

Oregon has become the first state to enact a predictable scheduling law, S.B. 828, regulating employer scheduling practices in the food service, hospitality, and retail industries.  The new law will take effect on July 1, 2018.  Oregon is likely the first of many states to pass such legislation.  As our Retail Blog previously reported, cities such as New York, Seattle, and San Francisco have passed similar measures.

The law applies to retail establishments that operate in Oregon and employ at least 500 employees worldwide.  Separate entities may be considered an “integrated enterprise” for purposes of determining whether an employer employs at least 500 employees.  The Commissioner of the Bureau of Labor and Industries is to adopt rules to assist employers to determine whether separate entities are an integrated enterprise.

The law applies to nonexempt employees of covered employers, and does not apply to salaried, exempt employees, workers supplied by

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Temps in Tenth Circuit Face Stricter Scrutiny When Seeking Time Off as Reasonable Accommodation

On July 6, 2017, a three-judge panel of the United States Court of Appeals for the Tenth Circuit reiterated that physical attendance in the workplace is an essential function of most jobs and emphasized this is particularly true for temporary workers filling short-term vacancies.

In Punt v. Kelly Services, the plaintiff, Kristin Punt, was a temporary worker assigned to work for GE Controls Solutions (“GE”) as a receptionist.  The essential functions of that job included being “physically present at the lobby/reception desk during business hours.”  However, during her six weeks in the position, Ms. Punt was absent or tardy on multiple occasions, often due to medical appointments related to a recent diagnosis of breast cancer.  GE terminated her assignment after she informed GE on a Monday morning that she planned to be absent the entire week and would need unspecified additional time off for “some appointments and tests” and “five

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