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Employment Law

Tally cost before replacing ‘key’ FMLA leave-taker

06/23/2011
Employers sometimes think they can replace key employees who take FMLA leave. Not true. They must show that reinstating the employee would have caused substantial and grievous economic injury to the company.

Know ADAAA rules on accommodations for disabilities that can be medically controlled

06/23/2011
The 3rd Circuit Court of Appeals has sent a signal that it may now hold employers to a higher standard when it comes to employees whose disabilities are under control, but need time off to keep them that way.

Beware union pact allowing arbitration and lawsuits

06/23/2011
Watch out if a union represents some of your employees, and the union contract does not bar federal discrimination lawsuits. A federal court has ruled that unless there’s a provision making arbitration the exclusive remedy, employees can simultaneously pursue arbitration and litigation.

Different discipline for ‘similar’ offenses? Better be prepared to explain why

06/23/2011
When you’re disciplining an employee, you don’t have to go into every detail about why she is being punished one way when another employee was dealt with differently. However, if the employee ever sues you for discrimination, you had better be prepared to explain the difference later—in court.

Keep it clean (and sober)! Ensure drug testing is uniform and fair

06/23/2011
When you offer employees a chance for drug or alcohol treatment and rehabilitation, make sure you treat them fairly. There’s nothing wrong with telling recovering employees they may be randomly tested for drugs or alcohol without notice. You can even use a “lottery” system that results in some employees being tested more often than others.

Remember: Discord isn’t always retaliation

06/23/2011

You can’t retaliate against employees who complain about alleged discrimination in the workplace. But what’s retaliation? Tense working conditions don’t always fit that bill. There can be many explanations for rising tensions that have nothing to do with a discrimination complaint.

Will PHRA expand to cover sexual orientation?

06/23/2011
Harrisburg Controller Dan Miller is lobbying the Pennsylvania Legislature to expand the Pennsylvania Human Relations Act to include sexual orientation and gender identity as protected classes. For Miller, it’s personal.

Better be prepared to justify unequal treatment

06/23/2011
There are times when management feels compelled to treat some employees differently than others. That’s fine—as long as you can explain why and your explanation makes it clear that race, age, sex or some other protected characteristic wasn’t the reason.

Telework before commute: Is drive time paid?

06/23/2011

Many employees spend time at home before or after their workday checking email. For nonexempt employees, that work could count as paid time if it amounts to a “substantial” amount of time. But now some hourly employees have begun to raise a related issue: If they start the day with a few work emails, shouldn’t they be paid for the time they spend commuting to work?

Supreme Court’s Walmart ruling makes it harder for workers to bring class actions

06/20/2011
In the most anticipated employment law ruling of the year, the U.S. Supreme Court said a huge lawsuit on behalf of 1.5 million female Walmart employees cannot proceed as a single class-action case. Experts say the important ruling will make it more difficult for employees to band together in giant class-action cases against employers. (Walmart v. Dukes)