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Employment Law

DOL issues resources to arm whistleblowers alleging retaliation

The Department of Labor’s Wage and Hour Division has launched a series of online publications designed to “uphold the rights of workers to identify violations of the law without fear of termination or other threats to their reputation, safety or livelihood.”

Beware hybrid bias suits citing 2 protected statuses

The EEOC doesn’t just rely on following Title VII’s enumerated protected classes. It’s increasingly filing lawsuits that combine allegations of discrimination on the basis of more than one protected class.

Yes, covid-19 may qualify as an ADA disability

Generally, a short-lived illness isn’t considered an ADA disability.  But now a federal court has ruled that an employee with covid-19 rather than the common flu may be covered by the ADA. That means firing him for missing work instead of reasonably accommodating the absence violates the ADA.

Biden signs bill banning forced arbitration of harassment claims

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is now the law of the land. The bill, which took effect immediately when President Biden signed it March 3, makes it illegal to require employees to arbitrate sexual harassment claims.

Prepare to justify post-exam employment decisions

The ADA strictly limits when employers can require applicants and employees to undergo medical exams. Following an exam, any adverse employment action—disciplining or firing a current employee or refusing to hire an applicant—must be justified as being job-related and consistent with business necessity.

Beware pay cuts that disadvantage minorities

Many employees who began working remotely two years ago decided to relocate to areas with low costs of living.  Some employers responded by cutting relocated workers’ pay—not always a popular practice, but somewhat defensible. But that calculus could trigger legal trouble, potentially affecting some protected classes of employees more than others.

DOL: That guy you just fired might be a whistleblower

OSHA has a litigation unit devoted solely to enforcing 20 different whistleblower laws that fall under the Department of Labor’s jurisdiction. Here’s an example of the kind of case this unit handles.

Avoid stereotypes when evaluating employees

Before criticizing or disciplining an employee for some qualitative shortcoming—such as being uncooperative, argumentative or overly aggressive—consider whether you would apply the same standard to someone belonging to a different protected class. Using stereotypes to define expectations is a recipe for legal disaster.

Dangerous succession plan: Make ‘dinobabies’ go ‘extinct’

Documents filed in support of an age-discrimination lawsuit against IBM reveal that high-level Big Blue executives called older workers “dinobabies” who needed to get out of the way so younger employees could advance.

States move to protect employee privacy

For years, privacy advocates have worried that technology may give employers too much access to information employees consider personal. A general expectation of privacy isn’t always reasonable in a public setting like work, but states have begun erecting barriers that limit how much employers can seek to know about their employees’ activities.