Oh, what a year it was in employment law. Themes that sprung up throughout the year were: social media, the definition of disability, health care reform legislation and the National Labor Relations Board. Let’s look back!
January: New regulations under the Genetic Information Nondiscrimination Act (GINA) took effect. They strengthened the protections given to employees, applicants, trainees and former employees, and extended the degrees of family relation that are already protected by the act.
February: The “Facebook firing” case was settled out of court, with the employer agreeing to “revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”
March: The Equal Employment Opportunity Commission released the final bipartisan regulations for the Americans with Disabilities Act Amendments Act, the new disability law that was passed in 2008. These amendments focused mostly on employer compliance with ADA regulations. Also, the Supreme Court ruled that companies can be held liable for the discriminatory motives of influential employees, even if they don’t have the power to fire people directly. Citing the “cat’s paw” metaphor, the Court ruled that discrimination can basically be conducted by proxy.
April: New Jersey passed a law making it illegal for companies to advertise job openings that include wording to the effect that only applicants who currently have a job will be considered. In this economy, it still seems especially cruel to exclude applicants who might be a great fit for a job but have been laid off.
May: The Ninth Circuit Court of Appeals recently ruled that fitness-for-duty exams, when ordered after a pattern of behaviors that indicate a worker can’t complete their job duties safely. The writeup from Shaw Valenza at the link is a very comprehensive guide to applying this standard.
June: In what was probably the most publicized class-action suit all year, the U.S. Supreme Court ruled that the 1.5 million women who have signed on to a class-action sex-discrimination lawsuit against Wal-Mart can’t, in fact, sue as a class. Thus far, the myriad individual cases against Wal-Mart that we predicted have yet to materialize.
July: Verizon agreed to pay a record $20 million to settle a suit brought by the U.S. Equal Employment Opportunity Commission. According to the EEOC, Verizon had violated the Americans With Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities.
August: The National Labor Relations Board has published a rule requiring all workplaces to post the National Labor Relations Act, including its information on employees’ rights to form and join unions. This was the start of the epic saga of the NLRA poster, which is still ongoing as we speak. Expect to hear more about the NLRA, the poster and the NLRB this year.
September: The NLRB released the NLRA poster and stated that businesses had to post it in all its 11×17 glory starting on November 14. Several business groups sued in response. Also, the 4th Circuit Court of Appeals ruled that the constitutionality of health care reform can’t be judged until it takes effect in 2014 and the Justice Department asked the Supreme Court to review health care reform legislation by summer 2012.
October: The Equal Employment Opportunity Commission brought a case against a Texas employer charging that morbid obesity can be considered a disability, based on how major life activities are affected.
November: More challenges to health care reform, as new Senate bill sought to repeal the component of the Affordable Care Act that would make health insurance companies pay taxes on their net premiums for fully insured customers. The tax would take effect in 2014, and would help fund the Affordable Care Act.
And finally, December. Here are the top legal stories of this past month:
Return to obesity: In Louisiana, a federal district court ruled that morbid obesity can qualify as a disability, regardless of the cause for said obesity. In this case, “morbid” obesity is defined as having a body weight that is more than twice the recommended body weight for one’s height. The original case was brought by an employee who was fired for limited mobility, despite having received stellar performance reviews. Sadly, she died due to complications of her weight and the EEOC continued with the appeal on behalf of her estate.
The Department of Labor proposed a change to the existing minimum-wage and overtime laws for in-home caregivers. When existing laws were drafted in the mid-70s, exemptions were established for long-term in-home care workers. However, as the U.S. population ages, more such workers are needed, and the DOL says that this proposed change will give these workers the wage protections they need. There’s a great writeup of the whole thing at the link.
The 7th Circuit Court of Appeals issued a ruling that will interest anyone who’s unsure of whether or not they need to pay their workers overtime (you can also download our free eBook on the topic). According to the court, if an employer is not aware of an employee’s working overtime, the employer is not obligated to pay that employee overtime.
The EEOC began pondering the question of whether or not requiring a high school diploma for certain jobs is discriminatory. According to the agency, employers must provide a business justification for educational requirements, including high school diplomas; otherwise, people who couldn’t earn a diploma due to a disability would be screened out.
The 11th Circuit Court of Appeals surprised those familiar with the court’s usually conservative rulings when it ruled in favor of a transgender employee who was fired by her firm after she announced plans to undergo a gender transition. Remember: just as it’s illegal to discriminate on the basis of gender, it’s also illegal to discriminate on the basis of gender nonconformity. Make sure your employee manual, legal counsel and all your employees are aware of this.
And speaking of discriminating on the basis of gender nonconformity, two men filed a suit against an auto-parts retailer that had employed them, charging that they were harassed and fired because they refused to conform to an especially sleazy gender role: the guy who hangs out in strip clubs and brothels a lot and tries to bully others into partaking of them with him. Given the details of the case, we feel that the two men are much better off away from that employer, and we’re certain that you’d never allow such shenanigans at your workplace.
So that’s 2011! We can’t wait to see what new legal hijinks await us in 2012.
Written by: Catherine Cantieri