Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Today’s SCOTUS pregnancy decision in 1:14

Posted in Discrimination, Pregnancy

Today’s majority opinion of the Supreme Court in the Young pregnancy accommodation case reminded me of this scene:

Employers are Jennifer Anniston, and Justice Breyer is Mike Judge.

I’ll be back with some real information about what this decision means for employers.

Hang tight, employers — EEOC’s proposed Wellness Rule is at the OMB

Posted in Affordable Care Act, Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA

The EEOC’s much-awaited proposed rule on employer wellness programs, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act may finally be on its way. According to Law360, a proposed rule has been approved 4-1 by the Commission, and is being reviewed by the Office of Management and Budget as we speak.

Once approved by the OMB, the proposed rule will be published, and there will be a 60-day period for interested parties to comment.

The Affordable Care Act provides significant latitude to employers — including the ability to provide rewards for employees who participate in wellness programs and achieve results, and penalties for employees who decline to participate in the programs.

However, the ADA does not allow employers to request employee medical information unless the information is either “job-related and consistent with business necessity” or requested in connection with a voluntary wellness program. Thus, the question arises whether a wellness program is truly “voluntary” if the employer is rewarding employees who participate and penalizing employees who don’t.

I’ve written about this subject a few times in the past:

EEOC promises guidance on wellness programs in February

BREAKING: EEOC seeks court order to halt Honeywell’s biometric testing

Is the EEOC off the rails with this new “wellness” lawsuit? Don’t think so.

Guidance on employer incentives for wellness participation is on the way, says the EEOC

“Voluntary” wellness programs – seeking answers from the EEOC

Wellness “sticks” as well as “carrots” are legal, court says

Employers, don’t be overzealous with your wellness

Is it ok under the ADA and the GINA to offer wellness incentives? The EEOC explains it all for you

Needless to say, we’ll have a full report on the proposed rule as soon as it is issued.

A conversation about race: The Exciting Conclusion

Posted in Corporate Culture, Discrimination

March 22, 2015

Dear Diary:

Well, I got to Starbucks this morning, and Xander told me I didn’t have to worry about that #RaceTogether stuff any more. I was super-excited and super-relieved! Then he told me our new topic to talk about with customers this week – the war on women. #NotanImprovement!      :-(

A conversation about race

Posted in Discrimination, Labor Relations, Retaliation, Social media

March 1

Dear Diary:

I start my new job as a Starbucks barista tomorrow. I am super-excited!!!!! I just hope I can handle the fast pace!



“Dear Diary . . .”

March 2

Dear Diary:

Wow! This job is hard! There is a lot to learn! But my supervisor, Xander, is super-nice (and cute, too!). When I accidentally gave a customer an Espresso Macchiato instead of a Cinnamon Dolce Latte, he said I shouldn’t worry, because I would be a barista-supreme before long. I hope he asks me out!  ♥♥♥


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Posted in Americans with Disabilities Act, Discrimination, eLaw, Employment Law Blog Carnival, ERISA, Family and Medical Leave Act, Gender Identity Discrimination, Labor Relations, Lactation, Protected Concerted Activity, Retaliation, Safety, Same-sex marriage, Social media, Wage-Hour

(St. Patrick’s Day is sooooo nine hours ago!)

Ever looking to the future, we celebrate the coming April Fools’ Day with this month’s greatest employment law Apr.Fool.ELBC.Foolblog posts. Some of my summaries are accurate, and others are “fools’ editions” – you’ll have to read the actual posts to know which is which. There are so many excellent posts that I’m listing them in alphabetical order by blogger’s last name. Enjoy!

Donna Ballman of Screw You Guys, I’m Going Home says that we wouldn’t have so many people in jail if prisons were required to pay the minimum wage for inmate labor. Check out “Is Incarceration the New Slavery? Does Cheap Labor Explain the U.S.’s High Incarceration Rates?”

Heather Bussing of HR Examiner asks, “Is There Recovery After Workplace Drama?” No, Heather answers. Heather recommends that employers adopt and communicate to employees a strong, clearly worded no-histrionics policy prohibiting thespianism during working time and in working areas. Violations should result in disciplinary action, up to and including discharge. Which means no more reenactments of this scene in the break room:

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What’s your workplace retaliation IQ?

Posted in Retaliation

It’s been a while since we’ve had an employment law quiz, so let’s do it! This one is on retaliation. As always, the answers will be provided after each question — you have our “no-pressure” guarantee.

1. What is retaliation?

A. Getting even with somebody because he did something you don’t like.


“You’ll never work in this town again.”

B. Denying somebody a reward (such as a pay raise) because he did something you don’t like.

C. Working in a retail establishment, such as a Walmart (“retailiation”).

D. Taking action against somebody (such as refusing to hire) because he did something you don’t like.

E. A, B, and D.

F. None of the above.

ANSWER: E. The requirements for unlawful retaliation are more specific, but A, B, and D are examples of “generic” retaliation.

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“State of the Union” on substance abuse and the workplace

Posted in Americans with Disabilities Act, Drug Testing, Family and Medical Leave Act, Safety, Transportation Industry

Where are we these days with respect to mind-altering substances and the workplace? Here’s the latest, with the “substances” discussed in alphabetical order. This blog post is guaranteed accurate™ for at least the next five minutes.


Three amigos!

ALCOHOL. Alcohol is legal, which means that it is generally recognized as the most abused of substances. Employers can prohibit its use in the workplace and can prohibit employees from coming to work under the influence. That’s the easy part.

Under the Americans with Disabilities Act, it’s more complicated. Alcohol is not an “illegal drug,” meaning that alcoholics who are “current users” do have some legal protections, but alcoholism is not as protected as, say, cancer.

It would violate the ADA for an employer to take action against an employee just because she was an alcoholic. (As an example, you wouldn’t want to fire the alcoholic employee for getting drunk at the office holiday party unless you fired everybody else who got drunk at the party, too.)

An employer may have to provide reasonable accommodations to an alcoholic employee, such as allowing time off for AA meetings or medical leave for the employee to enter a detox facility. (AA meeting time and detox time may also be covered under the Family and Medical Leave Act.)

On the other hand, it’s legal for the employer to take action against an employee whose alcohol abuse causes her to fail to meet attendance, performance, or behavior standards, even if the employee is an alcoholic. And there’s no duty to “accommodate” an alcoholic employee by letting her drink on the job or sleep at her desk because she’s too hung over to work.

If the employee just likes to drink and isn’t an alcoholic, then she’s not “disabled” within the meaning of the ADA and has no protection.

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The new “us”!

Posted in Uncategorized

We are delighted to announce that the law firm formerly known as Constangy, Brooks & Smith, LLP, is now Constangy, Brooks, Smith & Prophete, LLP, as internationally-recognized labor and employment attorney Don Prophete and 12 other outstanding labor and attorneys have joined our firm. The moves give our firm more depth, and new offices in Denver and New York City in addition to our already-existing 24 offices nationwide.

Here’s a short video about the changes:

Welcome to all of our new colleagues. We are so glad to have you with us!

This ‘n’ that from the world of the workplace

Posted in Discrimination, eLaw, Equal Pay, Non-Competes, Social media, Violence

Religious accommodation, the Oscars, non-competes, social media, Brian Williams versus Bill O’Reilly, workplace violence, and inspirational employees — we have it all today! Here are some links about recent news and court cases involving the workplace, followed by some points for discussion if you’d like to comment.


As the world turns . . .

Supreme Court justices seem to side with hijab-wearer against Abercrombie. Oral argument was held Wednesday in EEOC v. Abercrombie & Fitch, a case I’ve been following for some time. According to the EEOC, Samantha Elauf  – a woman who wore a Muslim hijab (head scarf) to her job interview – was rejected for employment at an Abercrombie store in Tulsa, Oklahoma, because the hijab didn’t fit in with the retail chain’s “look” policy. (Abercrombie has changed its policy since Ms. Elauf was declined employment.) The EEOC claims that Abercrombie discriminated against Ms. Elauf because of her religion and failed to reasonably accommodate her religious beliefs. The EEOC won summary judgment, but Abercrombie appealed to the U.S. Court of Appeals for the Tenth Circuit, which reversed and granted summary judgment to Abercrombie instead. According to the Tenth Circuit, Ms. Elauf was required to disclose to her interviewer that she was wearing the hijab for religious reasons — otherwise, Abercrombie couldn’t have known that its duty to avoid discrimination or make reasonable accommodations was triggered.

I disagreed with the Tenth Circuit decision in this post from 2013. The case is now at the U.S. Supreme Court.

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