Recognizing that every business with employees faces challenges that can impact their growth and profitability, Sandberg Phoenix attorneys are committed to sharing their knowledge of, experience with and passion for employment law. Addressing current issues, recent case studies and matters of statutory and regulatory compliance, the Employer Law Blog provides expert advice and analysis of important aspects of employment law.
The September 30, 2016, due date for employers to file their annual EEO-1 reports with the Equal Employment Opportunity Commission (EEOC) is on the near horizon. Private employers with 100 or more employees, and federal government contractors or first-tier subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more, should take the appropriate measures to file their reports on time.
Recently, in Hernandez v. Bridgestone Americas Tire Operations, LLC, the U.S. Court of Appeals for the Eighth Circuit held that where overtime is considered mandatory an employer may deduct missed shifts from an employee’s allotted intermittent leave allotment under the Family and Medical Leave Act of 1993 (FMLA), but that the employer must also include mandatory overtime hours when calculating an employee’s total FMLA-leave allotment. Failure to do so constitutes an FMLA interference claim.
The anti-business Occupational Safety and Health Administration continues its onslaught of burdensome regulations on American business. The “stick it to the company” philosophy is no more evident than with its new increased penalties. As of August 1, 2016, OSHA penalties will increase.
On July 28, 2016, the Seventh Circuit issued its decision in Hively v. Ivy Tech Community College holding Title VII does not prohibit employment discrimination on the basis of sexual orientation. The Seventh Circuit’s opinion is the first to address this issue since the Equal Employment Opportunity Commission held in July 2015 sexual orientation is sex discrimination and therefore violates Title VII.
By Courtney Cox
Jack Brown had worked for the City of Anderson Transit System (CATS) for many years as a bus driver and then a dispatcher. When the mayor’s election caused a change from one political party to another he was demoted to a mechanic’s helper. When the political winds blew in his favor after the next election, Brown was promoted to a street-supervisor position. In this position Brown made sure the drivers left the bus garage with the requisite paperwork and operational vehicles.
Along the way, before he was promoted to the street-supervisor position, Brown developed diabetes and was unable to maintain his commercial driver’s license (CDL). The street-supervisor position job description required the person holding that position to have a CDL.
When the political winds blew ill again and a mayor of the opposite party was elected, Brown was fired from the street-supervisor position. His termination notice listed his inability to obtain a CDL as required in the job description as the reason for his discharge. An employee is only a “qualified employee” under the ADA if he or she can perform the essential functions of the job, with or without accommodations.
Brown sued the city for failing to accommodate his disability in violation of the Americans with Disabilities Act. The jury sided with Brown on his ADA claim and awarded him damages. The city appealed, pointing to the job description as proof that holding a CDL was an essential function of the job which Brown could not perform.
The Seventh Circuit said not so fast. The job description is merely one of several factors court considers when determining whether a job function is essential. The court also considers other factors –
• The employer’s judgment as to which functions are essential
• The amount of time the employee spends on the job performing the function
• The consequences of not requiring the employee to perform the function
Here, the job function at issue was driving the bus, which Brown could not do without a CDL. The Court noted Brown’s supervisor admitted he knew Brown did not have a CDL when he promoted him, indicating the employer did not consider the function of driving to be essential. Brown testified he had worked in the job for four years and never had to drive a bus, indicating he spent no time on the job performing this function. Finally, the court noted testimony that when a replacement driver was needed one could be obtained in 10 minutes, so the consequences of Brown not driving were minimal.
In the end, the Court affirmed the jury’s decision, noting that the issue what is an essential job function is a question of fact for the jury.
Brown v. Smith, et al, No. 15-1114 (7th Cir. June 28, 2016).
Last year, the Department of Labor published a Notice of Proposed Rulemaking signaling a drastic impending change to the salary threshold requirement for employers to classify certain jobs as exempt from overtime and minimum wage. Since that time, we have been working with clients on workforce analysis and planning, including budget forecasting, to determine the best and most cost-efficient way to adapt to the changes to come.
On April 27th Congress passed the Defend Trade Secrets Act of 2016 (S.1890 (DTSA) and sent it to President Obama, who has indicated he will sign it into law. Employers will now be able to utilize federal courts and new remedies to protect themselves against the theft of trade secrets and illegal competition. This allows trade secret holders the option of going directly to federal court—with its certainty of rules, standards, and practices—and avoiding the potential uncertainty and delay of busier state courts.
A recent federal circuit court of appeals decision shows a growing change in how courts define an “employer” for the purpose of establishing liability under the Family and Medical Leave Act (“FMLA”).
On March 23, 2016, the Department of Labor issues its new “persuader” rule which has been the matter of much controversy since 2011. The persuader rule is designed to implement Section 203(b) of the Labor Management Reporting and Disclosure Act of 1959. A prior rule existed, but the Obama Department of Labor thought that it did not go far enough (translation: did not favor organized labor sufficiently – writer’s opinion).