Asking About Easier jobs Triggers Employer’s duty to Participate in Interactive Process

An employee of a printing and copying company was diagnosed with stage four cancer, and was concerned that she would be unable to perform the physical aspects of her job. After her diagnosis, she spoke with her supervisor, stated that she wanted to keep working and asked whether there were any other easier jobs available. The supervisor stated that he did not know of any, nor did he direct her to human resources. Twenty minutes after the call with her supervisor, the employee resigned. She subsequently filed a failure to accommodate claim under the Americans with Disabilities Act ("DA). In rejecting the employer's motion for summary judgment, the court held that the employer's obligation to participate in the interactive process begins as soon as it is placed on notice of a disability. Ultimately, the court held that the ADA obligated the employer to push the process forward once the employee informed it of her diagnosis and the fact that she wanted to keep working. This case demonstrates the importance of participating in, and clearly documenting the steps taken during, the interactive process. Once employers learn of an employee's disability, steps must be taken to ensure that interactive process begins and is effective.

For more information read Suvada v. Gordon Flesch Co., Inc., No. 11 C 07892 (N.D. Ill. Sep. 13, 2013).

ADA Accommodations need not be job Related

An assistant attorney general for the Louisiana Department of Justice suffered from osteoarthritis of the knee, and requested that her employer provide her with a free on-site parking space as an accommodation. The employer refused, and the employee filed a claim under the Americans with Disabilities Act, claiming that the employer failed to provide her with a reasonable accommodation. The district court granted summary judgment to the employer, holding that the employee failed to explain how the parking space related to her ability to perform the essential functions of her job. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that there need not be a nexus between a requested accommodation and the essential functions of the requesting employee's job. In reaching this holding, the court focused on the language of the statute, as well as implementing regulations, and found no requirement that an accommodation be specifically linked to an employee's essential job duties. This case provides an important clarification of the accommodation process, and employers should be careful to fully evaluate all accommodation requests, even where there is no direct nexus between the requested accommodation and the requesting employee's job duties.

For more information read Feist v. Louisiana, No. 12-31065 (5th Cir. Sep. 16, 2013).

Certification of meal Break Employment Class Affirmed by Ninth Circuit

In Abdullah v. U.S. Security Associates Inc., the Ninth Circuit held that the district court did not abuse its discretion by certifying a meal break subclass, defined as all past and present employees who (a) worked more than six hours, (b) were not provided a meal break, and (3) were not compensated for the meal break.

Plaintiffs were former employees of USSA, a private security guard company. As a condition of employment, all employees were required to sign an agreement to take their meals on duty, rather then having a meal break. Plaintiffs sought to maintain a class action on behalf of themselves and all others similarly situated, alleging that the employer’s policy of requiring employees to work through their legally mandated meal periods made USSA liable for paying compensation for missed meal periods pursuant to California Labor Code 226.7 and the applicable wage order. The district court certified the subclass pursuant to FRCP rule 23(b)(3), which defendant challenged this ruling. More ›

Employer’s Arbitration Agreement Passes Muster

In Peng v. First Republic Bank, the California Court of Appeal for the First Appellate District rejected an employee’s contention that a company’s standard arbitration agreement was unconscionable.

Peng stands for the proposition that most boilerplate arbitration agreements contained in employment contracts will be upheld unless the employer enforces them in bad faith. For example, an employer may not unilaterally modify an agreement after an employee has filed a claim. More ›

Obamacare Small Business Exchange Delayed

Mounting technical delays are complicating the implementation of the Affordable Care Act, aka Obamacare.

The website Politico is reporting that the Obama Administration intends to delay a portion of Obamacare aimed at small businesses.

The delay involves online enrollment for small business health exchanges run by the federal government known as “SHOP” exchanges, Politico reports.  Enrollment was scheduled to start on October 1, 2013.  Small businesses will now have to wait until November to enroll online, though paper enrollment is still an option. More ›

Are You Ready For Obamacare’s Employee Notice Requirements?

An important deadline for employers regarding the Affordable Care Act, or Obamacare, is just around the corner.

By October 1, 2013, employers must notify employees of the coverage options available on health insurance marketplaces or exchanges. The requirement applies to companies with one or more employees and not less than $500,000 in annual business — in other words most employers. More ›

No Anti-SLAPP Protection for Statements to Coworkers

In Cho v. Chang, the California Court of Appeal, Second Appellate District held that an employee’s statements to coworkers about alleged discrimination were not protected activities triggering special protection under California’s anti-SLAPP statute.

The court further held that an anti-SLAPP motion can be granted as to protected activities and denied as to unprotected activities combined within the same cause of action. More ›

October 1 Deadline Approaching for Employers to Issue “Notice of Coverage Options” to Employees

The Affordable Care Act (ACA) imposes on employers various new obligations that are to take effect over the next several years. Employers received some measure of relief with the surprise announcement of a one-year delay in the enforcement of the employer mandate until January 1, 2015. Other requirements under the ACA, however, continue to move forward. More ›

Class Certification Rules Clarified: Harder for Plaintiffs to Certify Classes

On September 3, 2013, in Wang v. Chinese Daily News, Inc., the Ninth Circuit clarified the restrictions on class certification imposed by Wal-Mart Stores, Inc. v. Dukes. The net effect of this ruling is to make it harder for plaintiffs to certify classes.

In Wang, named plaintiffs were employees of Chinese Daily News (“CDN”) who alleged that they had been made to work more than eight hours per day and more than forty hours per week. They also alleged that they were wrongfully denied overtime compensation, meal and rest breaks, and accurate and itemized wage statements. More ›

Proposed Employer tax Rules Available for Obamacare

The U.S. Department of the Treasury and the Internal Revenue Service have published proposed rules establishing reporting requirements for employers and insurers under the Affordable Care Act (“ACA”), or Obamacare.

Under the ACA, employers with 50 or more full-time employees must offer health insurance or pay a penalty. The new proposed rules flesh out how employers must report information to the IRS with respect to their employees’ enrollment in qualified health plans. More ›