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Showing 16 posts from April 2013.

Third Circuit Upholds Termination of Employee for Dishonesty About Drug Addiction on a Post-Offer Medical Questionnaire

A hospital-employer hired the employee as a security guard. On his post-offer medical questionnaire, the employee affirmatively stated that he had never suffered from drug or alcohol addiction in the past nor participated in a drug and alcohol treatment program. More ›

“Insomnia” Insufficient Basis for ADA and FMLA Claims

In this case, the attorney claimed that her employer's denial of her reduced-work-schedule request constituted both an unlawful failure-to-accommodate under the Americans with Disabilities Act (ADA) and unlawful interference with her right to take leave under the Family and Medical Leave Act (FMLA).   More ›

Seventh Circuit Clarifies how to mtet Injury Requirement of the Computer Fraud and Abuse Act

Employers who encounter the option of pursuing a current or former employee or independent contractor under the Computer Fraud and Abuse Act have at times passed on this option due to the specific injury requirement imposed by the Act. Fortunately, the Seventh Circuit of the U.S. Court of Appeals has recently provided guidance on how to satisfy the injury requirement imposed by the Act so as to avoid the entry of an adverse summary judgment that bars the pursuit of a claim under the Computer Fraud and Abuse Act ("CFAA"). More ›

Supervisor who told Employee she was “too old” not Responsible for Firing

A 61 year-old employee's supervisor made age-related comments over a four month period. Later, while informing the employee that she was being fired, the supervisor suggested that the employee was "too old" for the job. The employee sued her former employer for age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and the state's civil rights act. The trial court dismissed the employee's lawsuit and the employee filed an appeal. More ›

11th Circuit Affirms Denial of Temporary Reinstatement Sought By NLRB

In NLRB v. Hartman & Tyner, Inc., Case No. 12-14508 (11th Cir. April 16, 2013), the 11th Circuit of the U.S. Court of Appeals affirmed a trial court ruling that denied the NLRB's request to have six employees temporarily reinstated to their jobs. The Board charged the employer with discharging the employees because of their involvement in a union organizing campaign. Of interest to employers, the ruling focused on whether the temporary reinstatement of the employees, sought by the Board, qualified as "just and proper" relief under the National Labor Relations Act. 29 U.S.C. sec. 160(j)More ›

Isolated Age Comment Insufficient to Overcome Employer’s Legitimate Reason for Layoff

The technology company, which manufactured components for large-scale computer networks and data storage systems, employed a team of sales account managers. This particular account manager was successful in generating significant revenue for the company over the course of several years. The Company began to make changes to procedures and started to cut costs due to the downturn in the economy and the industry changes in terms of how data is stored, which ultimately led to the reduction in force of the sales team from five employees to two. The account manager, however, felt that this rationale was a pretext for age discrimination, and that he was selected for lay off because of his age. To back this up, he pointed to comments made by the vice president of sales about needing to “re-energize” the team, which he considered disparaging remarks regarding the ages of the sales team. He accordingly filed a charge with the Massachusetts Commission Against Discrimination, who dismissed the complaint for a lack of probable cause. He then filed suit in state court, claiming, among other things, age discrimination under Massachusetts law. The employer removed the case to the United States District Court for the District of Massachusetts based on diversity jurisdiction, and then moved for summary judgment on all counts. The district court granted this motion, and Woodward appealed. More ›

Analysis: Controversy Surrounding Obama’s NLRB Recess Appointees

As an employer, you may be perplexed by the flap over President Obama’s recess appointments to the National Labor Relations Board (“NLRB”) and concerned about what it all means for business.

Your confusion is justified; the situation remains fluid and no one knows just where the dust will settle. This posting provides an overview of the current state of affairs.

The NLRB is a five-member board typically populated by three members from the president’s party and two from the opposing party. The board now has only three members, all Democrats appointed by President Obama. More ›

Collective Action Cannot Proceed Where Representative Plaintiff’s Claim Rendered Moot

Today, the U.S. Supreme Court issued its ruling in Genesis Healthcare Corp et al v. Symczyk, No. 11-1059 (U.S. Supreme Court, April 16, 2013) , holding that the employee could not maintain a collective action once her individual claims were rendered moot.  More ›

Third Circuit Upholds Termination of Employee for Dishonesty About Drug Addiction on a Post-Offer Medical Questionnaire

A hospital-employer hired the employee as a security guard. On his post-offer medical questionnaire, the employee affirmatively stated that he had never suffered from drug or alcohol addiction in the past nor participated in a drug and alcohol treatment program. Thereafter, the employee suffered an injury at work and reported to the hospital’s emergency department. When discussing his treatment with the physician, the employee indicated that he was a recovering drug addict. The employee’s medical information was then transferred to the hospital’s employee services division. Upon learning that the employee had suffered from past drug addiction, the hospital terminated the employee for dishonestly on his post-offer medical questionnaire. More ›

Additional Reason for Failure to Promote is not Indicative of Pretext for Discrimination

A member of the Air Force was denied four promotions to Battalion Chief and Assistant Chief of Administration during a four-year period and sued his employer fire department alleging that these decisions violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). While there was sufficient evidence that the employee’s military service was a motivating factor in the promotion decisions, the employee’s claims were denied. As a rule, liability will not occur under USERRA if the employer would not have promoted a service member absent the individual’s membership in the military.To this point, the fire department’s decision-maker testified that the employee was trustworthy, made good decisions, exercised good judgment, and could work with others. The employee argued that this additional reason, first offered at litigation, was unbelievable. It was different than the reason offered at the time of the decisions, his skill level was lower than that of the employees selected for promotion. More ›

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