Showing 115 posts from 2012.

Policy Requiring Disclosure of Nature of Illness for Work Absences may Violate ADA

February 15, 2012 by Hinshaw & Culbertson LLP

The Equal Employment Opportunity Commission filed a class-action lawsuit against a department store claiming its policy violated the Americans with Disabilities Act (“ADA”). The case came about when an employee was unable to attend work for a few days due to medical illness, and despite having provided a doctor’s note for her absence, the store sought the specific nature of her illness in order to have the absences deemed “excused.” The employee refused to provide the information and claimed the request was unlawful. The store subsequently terminated her employment. Later, the store revised its policies and this requirement was removed.  More ›

DOJ Issues best Practice Advice for Employers Facing I-9 Audits

February 15, 2012 by Hinshaw & Culbertson LLP

The Office of Special Counsel for Immigration-Related Unfair Employment Practice recently released advice on best practices for employers to use in response to audits by Immigration and Customs Enforcement (ICE). The Office of the Special Counsel specifically advises that employers need to effectively communicate with employees and unions to assure that the audit process is transparent and not discriminatory. To do this, employers should develop a uniform plan for informing all employees that the employer is subject to an ICE audit. Employers should provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE and treat all workers in the same manner during the audit. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same time frames and the same choice of Form I-9 documents to present. More ›

Dukes’ Applicability may be Limited

February 13, 2012 by Hinshaw & Culbertson LLP

A recent opinion from the United States Court of Appeals for the Seventh Circuit demonstrates that the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) may have limited applicability to wage and hour class actions. More ›

First Circuit Holds that Private Companies’ Employees not Entitled to Whistleblower Protections Under SOX

February 7, 2012 by Hinshaw & Culbertson LLP

Former employees of private companies that act under contract as advisers to and managers of mutual funds organized under the Investment Company Act of 1940 filed suit against their respective employers for unlawful retaliation after they were terminated. The employees claimed that they were entitled to the whistleblower protection provision within the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1514A) (“SOX”) because they had reported potential fraud and security violations. The employers contested this, arguing that SOX’s protections did not extend to employees of private companies, and filed motions to dismiss the lawsuits.The district court disagreed with the employers, holding that this particular provision of SOX did protect employees of private companies that are contractors or subcontractors to “public companies" (as defined under the Act), where those employees were reporting violations relating to fraud against shareholders. More ›

NLRB Finds Arbitration Provision Violative of NLRA

February 2, 2012 by Hinshaw & Culbertson LLP

D.R. Horton, a homebuilder with operations in more than 20 states, began to require each new and current employee to execute a "Mutual Arbitration Agreement" (MAA) as a condition of employment, requiring arbitration of all claims on a individual basis, precluding them from filing joint, class or collective claims addressing their wages, hours, or other working conditions against the employer in any forum.  More ›

Department of Labor Announces Proposed Rules Expanding FMLA Leave

January 30, 2012 by Hinshaw & Culbertson LLP

Today, the Department of Labor announced that it is issuing a notice of proposed rule-making to implement new statutory amendments to the Family and Medical Leave Act. The provisions specifically address military caregiver leave and airline flight crew employee leave. More ›

Significant Public Interest in Investigation, Discipline of School Teacher Outweighs His Right to Privacy

January 27, 2012 by Hinshaw & Culbertson LLP

Though personnel files are typically afforded protection from inquiring minds, the rules are a little bit different when there’s a significant public interest at issue. That was precisely the case in this recent decision by the California Court of Appeals. More ›

Court Imposes Liquidated Damages Against Employer for FMLA Interference

January 24, 2012 by Hinshaw & Culbertson LLP

Calculating Family and Medical Leave Act (FMLA) leave can be a daunting task. The law provides employers with various options for determining how the 12 weeks plays out, and also sets forth various notice responsibilities, both for the employee and the employer. This proved to be a problem for one employer, however, who, while providing its employee with FMLA leave, failed to properly notify him of how it was calculating his leave, which ultimately cost the employer big. More ›

D.C. Circuit Demonstrates the Danger of poor Documentation

January 24, 2012 by Hinshaw & Culbertson LLP

In a decision released this week, the D.C. Circuit has proven that there is still truth to the old adage: document, document, document. The case, Hamilton v. Geithner, arose when a federal employee was passed over for a promotion. The begrudged employee felt that he had been far more qualified than the employee selected for the position. He brought suit against the IRS (his employer) under Title VII, calling its assertion that the selected employee had been more qualified a pretext, and alleging that the other employee (a Caucasian female) had actually been selected over him (an African-American male) based upon his race and gender. The district court granted summary judgment to the employer, finding that the disparity in the employees’ qualifications was “not significant enough to warrant an inference of discrimination.” More ›

Ninth Circuit Permits use of “Burden-Shifting” Test over “But For” Standard in ADEA Case

January 17, 2012 by Hinshaw & Culbertson LLP

An Army employee filed suit against the Secretary of the Army and the United States Army Corps of Engineers alleging violations of the Age Discrimination in Employment Act ("ADEA") after he was not interviewed and his applications for two promotions were denied. The lower court relied upon the newer Gross v. FBL Financial standard of determining causation in an ADEA case, and found that the employee could not demonstrate that “but for” his age, he would have been given the position(s). More ›

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