Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

“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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New FMLA rule will give rights to same-sex spouses based on “place of celebration”

Posted in Family and Medical Leave Act, Same-sex marriage

The U.S. Department of Labor announced today its Final Rule changing the definition of “spouse” in the Family and Medical Leave Act to include most same-sex married couples. I blogged about the proposed rule in June, and the Final Rule is the same for the most part.

The changes reflect (and expand upon) last year’s Supreme Court decision in United States v. Windsor. That decision overruled Section 3 of the Defense of Marriage Act, which defined “marriage” for purposes of federal law as beingGay-wedding.512px-Gay_wedding_a_by_Stefano_Bologni.JPG between one man and one woman.

Consistent with Section 3 of the DOMA, the DOL has traditionally defined “marriage” for FMLA purposes in this same way (that is, as male-female). With respect to opposite-sex spouses, the DOL determined whether a couple was validly married based on their state of residence rather than “place of celebration” (where the marriage was entered).


The changes to the FMLA regulations, which will take effect March 27, will essentially provide for uniform treatment of same-sex spouses by looking at the place of celebration instead of state of residence. In other words, if a same-sex couple was validly married, then they are “spouses” for FMLA purposes regardless of where they may live in the future.

(“Place of celebration” will apply to opposite-sex spouses, too, but that change won’t make a difference because other states have always recognized opposite-sex marriages that were validly entered in other states.)

The DOL argues that its changes will provide for more consistency, which will make things easier for same-sex couples and for employers who have multi-state operations. The DOL also noted that the U.S. Department of Defense  already follows a “place of celebration” rule for military spouses.

Same-sex couples who were married outside the United States will be considered “spouses” as long as the marriage (a) was valid where entered, and (b) would be considered valid in at least one U.S. state.

“Spousal” status under the FMLA means that an employee may take leave for the same-sex spouse’s serious health condition, for spousal military “qualifying exigency” leave, or for spousal military caregiver leave. It also means that the employee can take leave for the serious health condition of the child of the same-sex spouse, even if the employee is not acting in loco parentis with respect to the child.

Of course, if the Supreme Court rules this term that a valid same-sex marriage must be recognized by the other states, then the changes to the FMLA rule will probably have been unnecessary.


Text of the Final Rule (effective March 27)

DOL Fact Sheet


DOL Press Release

Should an employer fight unemployment? The debate continues . . .

Posted in Unemployment

You may remember that I stirred up some contentiousness a few weeks ago when I suggested that employers should not challenge unemployment claims except in the worst cases. So I hate to bring it up again (not really — I like debates in the comments!), but I received a very good question from an attorney reader a while ago, and he gave me permission to run his question here.

Ms. Shea,

I enjoyed your blog post dated January 30, 2015.

The Girl Who Kicked The Hornet's Nest.flickrCC

“Stop her before she does it again!”

I have for some time questioned the practice of “we will not contest your unemployment claim,” however. Depending on the state and the documents filed and served on the employer, it seems that this can be an implied false statement to a government agency. If eligibility for the benefit requires lack of misconduct by the employee, but misconduct was the grounds for termination, isn’t it a false statement to not dispute the employee’s version of events as being terminated for no fault of her own?

Which, one might add, could also be used against the employer later.

Maybe you can cover this in a future blog post.

All the best!

So many good points! Where do I begin?

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You’ve exceeded my expectations, Valentine!

Posted in Corporate Culture

Should an employee performance review be one big love letter?

Maybe so, according to Rachel Feintzeig, who wrote in Tuesday’s Wall Street Journal, “Everything Is Awesome! Why You Can’t Tell Employees They’re Doing a Bad Job.” The idea is that many employers are getting away from providing constructive criticism in performance reviews and are “accentuating the positive.”

My immediate reaction was, “Oh, here we go, catering to those spoiled Millennials again.”

Valetine Candy Hearts.flickrCC

“Tell HR that the Millennial performance reviews
are ready to go!”

(Just kidding, Millennials – I know you are not really spoiled. I don’t envy you, trying to break into this lousy job market.)

My second thought was, What else is new?

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Interview with a juror in Faruqi sex harassment trial

Posted in Discrimination, Evidence, Harassment, Sexual Torts

“Too long, loved the judge, didn’t believe either one of them but still think she may have been hurt, liked the firm but thought they should have done more.”

A little Faruqi fix for those of you don’t know what to do with yourselves now that the trial is over — David Lat of Above the Law interviewed one of the jurors, who offered some excellent insights into why they did what they did. Definitely worth a read.

Faruqi sex harassment trial: it’s a wrap!

Posted in Defamation, Discrimination, Evidence, Harassment, Retaliation, Settlements, Sexual Torts

As you may have seen, the jury in Marchuk v. Faruqi came back yesterday with a verdict for plaintiff Alexandra Marchuk, but it will not allow her to retire, nor will it even pay off her law school student loans.


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Ms. Marchuk got a total of $140,000:

$70,000 in back pay

$20,000 in front pay

$5,000 in punitive damages against the law firm

and $45,000 in punitive damages against partner Juan Monteverde.

The jury found in Ms. Marchuk’s favor on her sexual harassment claim under the New York City Human Rights Law, but found in the defendants’ favor on her harassment claims under Title VII (federal law) and the New York state Human Rights Law. Presumably, Ms. Marchuk will also be able to get attorneys’ fees as the prevailing party under the NYCHRL.

Read on for my analysis.

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Faruqi sex harassment verdict is in! Marchuk wins, to an extent.

Posted in Defamation, Discrimination, Harassment, Sexual Torts

Law360 reports this afternoon that the jury returned a verdict for Alexandra Marchuk and against defendants Faruqi & Faruqi, LLP, and partner Juan Monteverde. The jury awarded her $90,000 in actual damages, and punitive damages will be determined later. She had asked for $2 million.

Ms. Marchuk won on her hostile work environment claim under the New York City Human Rights Law. However, the jury found in favor of the defendants on her hostile environment claims under Title VII (federal) law and the New York state Human Rights Law.

Tune in tomorrow (literally), and I’ll provide some analysis of the whole sordid affair and final thoughts.