Author: sjodka

Asleep At the Wheel: The Growing Debate Regarding Obesity and Workplace Accommodations

As society continues to grow, pun intended, many new injuries and infirmities are entering the realm of “disability” putting employers more at risk at being caught in the crosshairs of the Americans with Disabilities Act (ADA) and comparable state laws (most of which track the original text of the ADA closely). Some of the extension is due to the number of new and expanded mental infirmities acknowledged in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM–5) , such as, hoarding, cannabis withdrawal, binge-eating disorder, and others (yes, all of these are real). Some of the extension is due to the evolving workplace, technology gains, and employees better understating disability laws, including accommodations for service/compassion animals. With the continual legal expansion in this area, aside from Michigan and a half-dozen municipalities that prohibit weight discrimination, obesity has always been and continues to be, in and of itself, not a “disability” under the ADA. The issue, however, became more blurred in 2013 when the American Medical Association pronounced obesity to be a disease. Since then courts have not bought into the AMA’s pronouncement and have maintained that obesity, in and of itself, is not a disability. What this means is that, an employer will not have to accommodate the obesity of an employee if obesity is the only issue. The “if” is what presents the continuing legal struggle...

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Five Common Employer Social Media Mistakes and How to Avoid Them

Social media has been and will continue to be an issue for employers. It has become the way people, especially Millennials, who make up a significant amount of the restaurant-industry workforce, communicate. When most employers think about social media in the workplace, they tend to think solely in terms of the high-profile social media firing cases where employers have terminated employees for posts made on social media. While social-media based discipline is certainly an issue for employers, there are a number of other social-media related issues that employers should be aware of. In this piece, five are addressed, starting with the most familiar and common offender, social media discipline. Disciplining/Terminating Employees for Social Media Posts  Social media-based discipline concerns two issues: (1) employer policy; and (2) content. In many circumstances, private employers may discipline an employee for social media posts, including for posts that may negatively impact the employer’s business, goodwill or that disclose confidential information, etc. Some social media communication, however, is legally protected, meaning an employer could get in a lot of hot water with a court or the National Labor Relations Board (NLRB) for disciplining an employee for making protected post. This issue became a major focus for the Obama-era NLRB, which greatly expanded its oversight over the social media issue, and held a number of employers liable for illegal policies and employee discipline. To do this,...

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Keep Rollin’ Rollin’ Rollin’: DOL Reissues 17 Opinion Letters That Had Been Withdrawn Under the Obama Administration

In late June 2017, the United States Department of Labor (DOL) announced it would be reinstating Opinion Letters issued by its Wage and Hour Division, which was a practice that had ceased back in 2010.  This announcement is significant from both the procedural and substantive basis. From 2010 to July 2017, Opinion Letters were replaced by Administrator Interpretations, which set forth a more general interpretation of the law and regulations as they pertained to a particular industry or set of employees. Opinion Letters, on the other hand, are official written opinions that set forth how wage and hour laws apply in very specific circumstances as presented to the DOL Wage and Hour Division via specific employer questions asking for a formal opinion to guide the employer as to how proceed. In other words, employers submit questions based on their specific factual circumstances and policies and the DOL issues a written opinion as to the legality of the employer’s policies. With Opinion Letters back, businesses have been waiting to see what the DOL would do with them. In the first week of 2018, the DOL answered that question by re-instating 17 opinion letters that were issued in January 2009 but withdrawn during the Obama administration. The DOL also reissued over a dozen advisory Opinion Letters that had been published during former President Bush’s administration, but were also later rescinded. Because Opinion Letters...

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The Way We Were: The NLRB’s Time Machine Resets the Clock on Employer Work Rules and Joint Employer Status

With the end of 2017 right around the corner, the National Labor Relations Board (NLRB or Board) issued a duo of pro-employer decisions that continue to chip away at and erase its jurisprudence during the Obama Administration. The first decision, Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, took on work rules. The Board overturned the 2004 Lutheran Heritage standard that held that employers violated the National Labor Relations Act (NLRA) by maintaining a workplace rule that an employee could “reasonably construe” to prohibit the employee from exercising the right to engage in protected activity under the NLRA, regardless of whether the rule actually expressly prohibited protected activities, was not applied to restrict such activities, or was not adopted in response to those NLRA-protected activities. As you might imagine, the standard made it difficult for employers to implement and enforce workplace rules necessary for company operations. The Obama-era NLRB used the standard to strike down and deem illegal a number of vanilla, commonly-used policies, including social media, at-will employment, non-solicitation, non-disparagement, etc. In place of the “reasonably construe” standard, the NLRB set forth a new test for evaluating facially-neutral policies/provisions. The new test is a two-prong analysis in which (1) the “nature and extent” of a challenged policy/provision’s “potential impact on NLRA rights”; and (2) the “legitimate justifications associated with the rule” are reviewed....

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A Holiday Pay Q&A to Keep Employers Off the Naughty List

December is a month of heavy spending. Not only are wallets taxed for holiday gifts, but December is also a heavy month for charitable giving. With money on everyone’s brains a little more this month, the All Things HR Blog thought it might be a good time to go do a Q&A of commonly asked holiday pay-related questions. Does a private employer have to pay a non-exempt employee holiday pay? For whatever reason, many employees believe they are entitled to pay on holidays when they do not work or that they are to be paid a special holiday premium if they do work. This notion typically comes from the private-employer employee knowing someone in public employment or subject to a collective bargaining agreement (CBA) because those employees typically get paid for holidays not worked or paid a special holiday premium by virtue of a public-employer statute or CBA. In the private-employer context, however, neither the Fair Labor Standards Act (FLSA) nor most state laws require private employers pay hourly employees for holidays not worked or a premium rate for working on a holiday. There are some states, such as California and Massachusetts, which have different laws regarding holiday pay so employers should review applicable pay laws in all states where they employees just to ensure they do not end up on the naughty list. In most states though, including...

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The HR Blog is published by Dickinson Wright PLLC to inform the public of important developments within the firm and practice areas. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in this blog.