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Searching for Articles by Dean R. Dietrich
Dean R. Dietrich
Chair of Employment, Benefits & Labor Relations Practice Group
Attorney
Wausau Office
.
Found 171 Results.

Being At Work Is An Essential Job Function

Posted on November 18, 2013, Authored by Dean R. Dietrich, Filed under Employment

A colleague wrote recently that the Court of Appeals for the Eighth Circuit ruled that when determining whether an employee is disabled or not because the employee cannot perform the essential functions of the job, the key document to be considered by the Court is the job description prepared by an employer to describe the essential functions of a position rather than the actual duties being performed by the employee. This decision places great importance on the job descriptions prepared by an employer. A recent decision from the District Court in the Fifth Circuit held that attendance at work could be considered an essential function of a position. If that occurs, an employee who could not meet the employer attendance requirements would not be considered a "qualified employee" under the Americans With Disabilities Act and would not qualify for protection such as a reasonable accommodation. While this is an initial stage of the Court rulings, it too highlights the importance of having accurate job descriptions and comprehensive job descriptions that identify the expectation of attendance at work as a requirement of the job. Many employers have not invested the time to update job descriptions. This may result in a loss of an opportunity to clearly identify the job expectations for a position and insure that all employees must be able to perform the essential duties of the job in order to be considered a protected employee that may be eligible for reasonable accommodations if suffering a disabling condition. Employers should also be careful to clearly indicate the attendance expectations for a position in order to be able to argue the attendance requirement as being an essential function of the position held by the employee. Often, the best way to review a job description is to ask the supervisor to review the description of all the positions that the supervisor is involved in actually supervising. It is important to have common language in all job descriptions, but it is also important to have specific descriptions that clearly identify the duties of the position. These recent Federal Court cases show the importance of an accurate job description.

Employers are NOT Required to Notify of Union Rights

Posted on May 14, 2013, Authored by Dean R. Dietrich, Filed under Employment

A federal district court decision has struck down an administrative rule proposed by the National Labor Relations Board that would require all private sector employers to notify their employees of the right to join a union. The recent decision held that this rule was not lawful and constituted an unreasonable exercise of administrative rule-making powers because the methods identified to enforce the rule could not be exercised by the NLRB. This rule was never actually implemented because of the legal challenge which has now caused the rule to be held unenforceable. Employers will not have to do anything because of this ruling. More important, employers will not be required to post a specific notice indicating what rights an employee has to join a union or form a union at their place of business. This is a small victory for employers at a time when many administrative rules are being created to facilitate union representation and union organizing efforts. Employers should be ever watchful of potential new administrative regulations governing the employment relationship.

Federal Court Upholds NLRB Approval of Mini-Bargaining Unit

Posted on September 3, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the 6th Circuit Court of Appeals (the Federal Court covering the states of Kentucky, Michigan, Ohio and Tennessee) held that the NLRB decision allowing for a "mini-union" was a valid and proper exercise of Board authority. In this case, the NLRB approved a bargaining unit that was comprised of a small group of employees in one position (certified nursing assistant position) instead of requiring the unit to represent a comprehensive bargaining unit of all employees with a "similar community of interest." In its ruling, the Board held that the employer had to prove "overwhelming community of interest" factors in order to strike down the proposed small bargaining unit and require an election to be held amongst employees in a large group of positions. This decision recognizes and validates NLRB rulings that require a company to prove overwhelming circumstances why the union should be required to win an election of a larger bargaining unit instead of the smaller bargaining unit comprised of one position. The impact of this decision is the potential that employers will be faced with union election petitions to represent a small portion of an employee workforce. This will certainly allow the union to be more successful in an election of a narrow group of employees with the potential that the union will expand to cover other positions in the future. This ruling opens the door to aggressive union campaigns for smaller components of an employee workforce where the likelihood of success is stronger. Employers must continue to be on watch for union-organizing activities in the workplace. Examples of union-organizing activities are flyers distributed by union officials to employees (or placing them on windshields of automobiles), secretive discussions in the hallway or after work hours, or invitations to union-organizing meetings outside the workplace. Employers must continue to watch for telltale signs of union-organizing activities and respond appropriately within the confines of the law.

Management Comments can Create a Smoking Gun for Discrimination Claims

Posted on August 7, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the U.S. Court of Appeals for the Sixth Circuit gives a prime example of how comments by an employer-representative can support a claim of discrimination. A sales manager in his late fifties showed a potential basis for a claim of age discrimination because of the comments made by a younger supervisor. The record of comments caused the Court of Appeals to reverse a lower court decision in favor of the Company and refer the matter back for a trial on the merits. The younger supervisor (in his thirties) made comments that the sales manager was "too old and too slow" and made "assumptions that younger people do not make." In addition, at about the same time, the sales manager was placed on a performance improvement plan that the employee was incapable of satisfying because of the nature of the conditions that were included in the plan. The Court of Appeals concluded that the proximity of these statements by the supervisor and the development of the impossible to satisfy improvement plan formed a basis to find a genuine issue of material fact that must be tried to the court. This is a prime example of how statements by a manager can create an impression or a context through which a reviewing court will question whether age (or other discriminatory factors) was the real justification for some type of adverse employment action being taken. Managers need to be aware of this potential for creating a "smoking gun" that can harm the Company. The Company must take steps to train managers so that they understand the consequences of their statements and avoid any actions that could be construed as showing discriminatory intent.

Caution - Duty To Accommodate May Be Expanded

Posted on November 13, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the 5th Circuit Court of Appeals has opened the door to consideration of a duty to accommodate under the Americans With Disabilities Act that goes beyond the need to accommodate an employee with assistance to perform the essential functions of the employee's job. In this decision, the 5th Circuit Court of Appeals held that summary judgment should not be granted to the employer but rather the trial court should determine whether the providing of free on-site parking to an employee that suffered from a knee problem was a reasonable accommodation. The point of this decision was that the ADA is not limited to providing accommodations to allow an employee to perform the regular duties of their position but rather could be read to require an employer to provide accommodations even if the accommodation does not directly help the employee perform their regular work duties. This is an expansion of how to consider what is a reasonable accommodation for an employee suffering from a disabling condition. While there are not more cases that follow this line of thinking, there is great concern that more circuits will see an opportunity to expand the duty to accommodate into various aspects of the work environment and not limit that duty to just addressing accommodations that will assist an employee to do their job successfully. This could open the door to significant expansion of requests for accommodations that would make life easier for an employee. It's not far-fetched to imagine requests to work from home on a regular basis because that will help an employee be successful and enjoy life. Employers must be very cautious when considering an accommodation requested by an employee. Employers should not move quickly to grant an accommodation even if it is a simple request without considering whether this will impact other requests in the future. Take the time to think this through before giving an accommodation to an employee even though the case law appears to be expanding the duty to accommodate.

Treat Employees the Same - Avoid Discrimination Claim

Posted on October 21, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Seventh Circuit Court of Appeals (governing Wisconsin) accents the importance of an employer treating employees the same especially in the event of disciplinary action issued to an employee. In this decision, the employer terminated a Hispanic employee but only reprimanded a non-Hispanic employee for conduct in violation of company policies that appeared to be similar. The Court of Appeals in Perez v. Thorntons, Inc. (No. 12-3669, 9/30/13), decided that the summary judgment granted to the employer should be reversed and a trial should be held to determine whether the violations were similar in nature and thereby supported a claim of discrimination based upon national origin and gender. The Court did not conclude that the violations were similar but only held that a trial must be conducted to determine the facts and circumstances regarding the violation committed by each employee and the rationale for the discipline issued. The important aspect of this decision is that courts will review employer disciplinary action to determine whether there was differential treatment between two employees that may support a claim of discrimination if the differential treatment was potentially based upon an employee being in a protected category. This is why it is important for employers to be consistent when considering disciplinary action even in an at-will employment setting where legal challenges to disciplinary action are very limited. The discretion exercised by Company officials will be reviewed to ensure that the Company is not taking more aggressive disciplinary action because an employee falls into a protected category. Employers should keep records of disciplinary actions taken and require any disciplinary action being taken by a supervisor to be reviewed by a human resource employee or other company official.

Is Coffee My Friend or My Foe?

Posted on June 11, 2013, Authored by Dean R. Dietrich, Filed under Employment

As a labor negotiator, I rely upon coffee to help me through the long days and long evenings that often occur when negotiating a new labor agreement. I have come to hold coffee in highest esteem as my best friend. I recently read that coffee may deter the chemicals that are responsible for memory loss although the tests have only been taken on the brains of mice and not men. Let's hope that coffee has the same impact on the human brain; I may offer my brain as a test subject based upon the amount of coffee I consume every day! I have also recently learned that coffee may become a "foe." The newest edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Medical Disorders (DSM-5) recently was issued and "caffeine withdrawal" has been identified as a new medical disorder. The symptoms of caffeine withdrawal are fatigue, headache, and difficulty focusing. I can see an individual who is not performing well in his position now argue that he has difficulty focusing because he suffers from caffeine withdrawal. This would apparently occur if an individual is used to caffeine in coffee as a mild stimulant but suffers withdrawal from the inability to get caffeine through coffee and suffers in work, sleep and whatever they need to do. By being recognized as its own mental disorder, an argument could be made that an individual suffers from a disability created by the notion of caffeine withdrawal. Wisconsin employers may also be subject to an additional claim if they take discipline against an employee that is having trouble focusing on their job duties because the use of coffee would be considered a lawful product and thereby protected under the use of lawful products protection in the Wisconsin Fair Employment Act. It is too early to tell whether this will become a new defense for employees who are being considered for discharge from employment but maybe we should all carefully measure how much coffee we drink each day in order to determine whether or not we will have either the positive effects or the negative effects of coffee.

Obesity as a Protected Category?

Posted on September 18, 2013, Authored by Dean R. Dietrich, Filed under Employment

I have written blogs in the past about obesity not being a protected category under the Americans with Disabilities Act and the Wisconsin Fair Employment Act. Over the weekend, the American Medical Association announced that obesity should now be considered a disease. It is anticipated that insurance companies will now recognize obesity as a covered illness and provide insurance payments for various treatments related to this condition. I wonder whether the conclusion that obesity is a disease will now mean that persons suffering from that condition are considered disabled and therefore subject to protection and a reasonable accommodation in the workplace. For the most part, court decisions have not recognized obesity as a protected category for which protection from discrimination would apply. The characterization of obesity as a disease may change the courts thinking on this and impose a duty on employers to not discriminate against a person suffering from that condition and require an employer to make a reasonable accommodation for someone who can't perform all the regular duties of a position because of the condition of obesity. This is a new area that may result in different types of litigation to seek damages or seek accommodations if it is proven that an employer discriminated against a person because of their body condition. We will have to see how cases play out with the newly recognized disease of obesity. Employers must be careful that they make employment decisions based upon the performance of an individual employee and not because of any other reason or even partially because of any other reason. Good documentation of the rationale for taking an adverse employment action is the best defense an employer can have to a claim of discrimination. Supervisors should be trained to make good decisions and have good justification for their decisions.

Partially Deaf Worker May Require Accommodation

Posted on August 2, 2013, Authored by Dean R. Dietrich, Filed under Employment

I wrote several blogs about potential areas of new disability claims relating to the use of caffeine and a new mental health disorder that may affect non-productive employees. A recent federal court case held that a partially deaf retail store pharmacy technician was entitled to file a disability claim when her employer placed the employee on indefinite leave because of difficulty in using the telephone at work. The employee suffered ear pain from a surgery on her "good" ear and could not effectively use the telephone because of the recent surgery and the pain caused when putting the phone to her ear. The employee was born deaf in one ear and suffered this limitation on the use of her other ear due to the surgery. The federal district court concluded that she suffered from an actual disability under the Americans with Disabilities Act Amendments even though each impairment on its own may not have substantially limited her ability to perform work. The court concluded that indefinite leave was not a reasonable accommodation when the employee was placed on leave of absence without pay because of her medical condition. The employee was able to show that she could handle telephone work even though she did not put the telephone directly on her ear, but the employer did not allow this accommodation to be used to allow her to continue to work. Employers must be careful not to move immediately to a leave of absence without pay if there is an accommodation that will allow an employee to perform their work duties without significant interference with the performance of those duties. This is especially true in Wisconsin where courts have held that the employer must do everything possible to allow an employee to continue to perform work, even to the point of assigning job tasks mainly performed by that employee to others to allow the employee to continue to work. Employers should take the time to consider possible accommodations and make a record if there are no accommodations that will allow the employee to be productive in the workplace.

Must You Accommodate the Bored Worker?

Posted on July 3, 2013, Authored by Dean R. Dietrich, Filed under Employment

I wrote several weeks ago about the changes made to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and the suggestion that caffeine withdrawal was now a disability that required some level of accommodation from an employer. Another change is the recognition of Autism Spectrum Disorder (ASD) as a new disability. This diagnosis includes such things as autistic disorder, Asperger's syndrome, childhood disintegrative disorder and pervasive mental disorder. Individuals with ASD may be over-sensitive to smells, sights and sounds or may experience memory deficits that interfere with a person's ability to complete tasks, remember job duties or recall daily actions. These conditions could result in an employee standing around looking bored but perhaps actually standing around not remembering what next task must be completed. Employers may now be required to address some of these symptoms by making accommodations for an ASD employee. Employers may have to address an over-sensitivity to smell, sights or sounds by allowing fresh air breaks or adopting a fragrance-free work policy. Employers may have to change lighting in order to address fluorescent light sensitivity or move an employee to a quiet area to address extra-sensitivity to noise. Employers may also have to provide additional training or even provide written instructions to an employee that experiences memory deficiencies as part of this condition. This disease also can be attributed to individuals who have difficulty interacting with others in the workplace. This may require employers to limit mandatory attendance at company functions or encourage other employees to minimize personal conversations in work areas or use a particular type of communication, such as using text messaging to communicate with an employee with this condition. This is another example of how employers may be restricted in how they treat their employees and may be required to provide significant accommodations to individuals that are diagnosed with these new disabilities. Employers should be careful when addressing the quirky behavior of a particular employee to avoid accusations of discrimination against a person with Autism Spectrum Disorder.

What's in Store for the Future - National Labor Relations Board

Posted on August 23, 2013, Authored by Dean R. Dietrich, Filed under Employment

On August 22, I spoke to the Employment Law Institute sponsored by the State Bar of Wisconsin on the topic of, "National Labor Relations Board:  What Will the Future Bring?" This topic focused on the recent congressional approval of new members to the NLRB which will eliminate legal challenges going forward to decisions made by the NLRB on the grounds of no quorum of Board members. In other words, the NLRB is now fully staffed which eliminates one argument that employers could make to challenge Board decisions. With the newly constituted Board, one must wonder what things will employers face in regard to Union activity and employee rights. The new Board will continue to monitor employer decisions about statements made by employees on social media to ensure employers do not discipline and employee for "protected speech." Protected speech is defined as commentary or discussions about wages and working conditions that are protected by Section 7 of the National Labor Relations Act. The Board will also likely monitor the language of employee handbooks adopted by a company and challenge any language that is designed to discourage or eliminate the right of employees to engage in protected speech either in the workplace or in outside settings. We also anticipate that the new Board will revisit the establishment of "Weingarten Rights" which would allow an employee in a non-union setting to have a representative of the employee's choosing if the employee is being investigated for or disciplined for inappropriate conduct or poor performance. This right has been granted and removed on several occasions and will likely be reinstated at some time in the near future as a legal requirement that companies must follow. Employers should pay close attention to any actions or decisions from the NLRB. Employers should also conduct training for managers so they are aware of what constitutes protected speech and what type of conduct an employee may be disciplined for especially when using social media to communicate with others.

Is the NLRB Alive? Supreme Court Will Decide

Posted on June 27, 2013, Authored by Dean R. Dietrich, Filed under Employment

On Monday, the United State Supreme Court granted certiorari (meaning they have agreed to hear a case) on whether the appointments by President Obama in January 2012 to the National Labor Relations Board (NLRB) are valid appointments or improper application of the "between" session presidential appointment process. President Obama appointed two members to the NLRB because court rulings held that the NLRB and its decisions were not valid without a majority of the Board (meaning three of the five members) being properly appointed to serve. The appointments were done on an emergency basis allegedly between two sessions of Congress but lower courts have ruled that the appointments were not valid because Congress was not properly between sessions when the appointments were made. The United States Supreme Court in Noel Canning v. NLRB, has agreed to accept the case on appeal to determine whether or not the appointments by President Obama were valid. Everyone agreed that the United States Supreme Court should hear this case to get a final decision on the presidential appointments and the authority of the NLRB. While we will not get a decision until next spring, we will at least have a final decision at some point in time whether the myriad of NLRB decisions issued over the past twelve-eighteen months are valid decisions and enforceable against the company. Stay tuned for more developments.

Being At Work Is An Essential Job Function

Posted on April 19, 2013, Authored by Dean R. Dietrich, Filed under Employment

One of my colleagues recently wrote about an Eighth Circuit Court of Appeals ruling that determined whether an employee is disabled. That determination was based on the employee's ability to perform the essential functions of the job. Rather than considering the actual duties being performed by the employee, the Court looked to the job description prepared by the employer, which described the essential functions of the position. This decision places great importance on the job descriptions prepared by an employer. A recent decision from the District Court in the Fifth Circuit held that attendance at work could be considered an essential function of a position. If that occurs, an employee who could not meet the employer attendance requirements would not be considered a "qualified employee" under the Americans With Disabilities Act and would not qualify for protection such as a reasonable accommodation. While this is an initial stage of the Court rulings, it too highlights the importance of having accurate job descriptions and comprehensive job descriptions that identify the expectation of attendance at work as a requirement of the job. Many employers have not invested the time to update job descriptions. This may result in a loss of an opportunity to clearly identify the job expectations for a position and insure that all employees must be able to perform the essential duties of the job in order to be considered a protected employee that may be eligible for reasonable accommodations if suffering a disabling condition. Employers should also be careful to clearly indicate the attendance expectations for a position in order to be able to argue the attendance requirement as being an essential function of the position held by the employee. Often, the best way to review a job description is to ask the supervisor to review the description of all the positions that the supervisor is involved in actually supervising. It is important to have common language in all job descriptions, but it is also important to have specific descriptions that clearly identify the duties of the position. These recent Federal Court cases show the importance of an accurate job description.

Supreme Court to Decide Validity of NLRB Appointments

Posted on May 16, 2013, Authored by Dean R. Dietrich, Filed under Employment

President Obama has asked the United States Supreme Court to reverse a lower court decision and hold that the President's appointment of three members to the National Labor Relations Board (NLRB) was constitutional and proper. These appointments took place in January, 2012 at a time when the Congress was in a recess between sessions of Congress but were not, under the Constitution on an official break between sessions of Congress. While it is hard to understand the distinction, the more important issue is that the National Labor Relations Board has lost its power to influence union/management activities because of the questions regarding the enforceability of any NLRB decision. The NLRB under President Obama has been very active, especially in the area of enforcing employee rights to pursue unionizing or engaging in conduct that could lead to unionizing efforts. This is particularly noted in the area of social media where the NLRB has been very forceful in issuing decisions and legal guidance limiting the right of an employer to discipline an employee because of their postings on social media that are critical of the company. While there is a significant question regarding the enforceability of these decisions because of the lack of a majority of NLRB members, employers must still be sensitive to taking discipline against individuals because of their social media commentary. Employers do not want to be scrutinized by the National Labor Relations Board even if there is a question regarding its ability to enforce an order against a company. The NLRB scrutiny could result in employees looking favorably upon union representation. To avoid this scrutiny, employers should be careful when considering discipline for social media commentary and give progressive warnings before making a decision to terminate an employee.

Disabled Employee Must be Considered for Vacant Position

Posted on June 5, 2013, Authored by Dean R. Dietrich, Filed under Employment

Recent action by the United States Supreme Court has clarified the duty of accommodation that an employer must make under the Americans with Disabilities Act. The action of the U.S. Supreme Court was to deny review of a 7th Circuit Court of Appeals decision involving United Airlines. The 7th Circuit Court of Appeals decision held that a "reasonable accommodation" under the ADA would likely require an employer to provide an employee with a disability the "reassignment to a vacant position" as accommodation if the employee is unable to perform the duties of their regular position. This requirement would apply even if there were other qualified candidates for the position. By denying the appeal, the United States Supreme Court has allowed the 7th Circuit decision to stand. As a result, employers must consider and give a vacant position to an employee with a disability provided the employee can perform the essential functions of that vacant position with or without a reasonable accommodation. This decision may not change the analysis done by a Wisconsin employer when considering whether or not to provide an accommodation to a disabled employee. The Wisconsin Supreme Court has been very generous in requiring employers to make many types of accommodations to an employee with a disability. One accommodation that likely must take place is to give a vacant position to the disabled employee without competing for the position if the employee is able to perform the essential functions of that vacant position. This would arguably not create an undue hardship for an employer. Employers should be careful to consider what vacant positions exist if an employee is considered disabled and unable to perform the essential functions of their then current position. Employers must do a thorough analysis to determine if the disabled employee is able to perform the duties of the vacant position. An employer may be subject to a disability claim if that vacant position is not granted to the disabled employee unless legitimate reasons exist for not making that assignment; a legitimate reason would not be a more qualified candidate is available to fill the vacant position.

Aggressive Investigation Strategies - EEOC

Posted on May 21, 2013, Authored by Dean R. Dietrich, Filed under Employment

The Equal Employment Opportunity Commission enforces federal laws relating to the employment relationship, particularly in the area of discrimination. The EEOC recently issued a new Strategic Enforcement Plan which gives employers a clear indication of what will be the focus of investigations by the EEOC. The EEOC said they have limited funds so they will be focusing their resources on the following areas: Hiring and recruiting especially the use of criminal background checks and various types of screening tools used by employers to narrow the candidate pool for new positions; Harassment of all types from sexual harassment to racial harassment; Reasonable accommodation and undue hardship determinations as well as pregnancy and sexual orientation discrimination are considered emerging issues that will have priority; Equal pay with particular focus on audits of federal projects; Immigrant and highly underpaid worker rights; Review of employer agreements and releases used to obtain protection from an employee claim that may be overbroad or non-compliant with federal regulations. Employers need to be aware of these target areas and make sure that training is done so that the supervisors on the forefront in the workplace are aware of these areas of concern and are trained on how to properly make employment decisions. Employers should also review their personnel policies and procedures to avoid a potential investigation by the EEOC.

Deaf Candidates are Entitled to Interpreter During Interview?

Posted on March 26, 2013, Authored by Dean R. Dietrich, Filed under Employment

The Equal Opportunity Employment Commission has filed a federal lawsuit against Toys "R"' Us alleging that the Company violated the Americans With Disabilities Act when it did not provide a sign language interpreter to a deaf applicant at a job interview. The EEOC alleges in the federal lawsuit that a Company of this size would not have an undue hardship to provide an interpreter to an applicant when asked to do so. This suit was filed in the U.S. District Court in Baltimore and will certainly go through an exhaustive litigation process. This federal lawsuit raises an interesting question that is not easily decided. What obligations for an accommodation does an employer have for an applicant who is seeking employment with the Company? The federal standard is that the request for an accommodation must not create an "undue hardship." The standard in Wisconsin is that the request for an accommodation must be reasonable and not pose a "hardship" on the Company. This standard has been interpreted to require employers to make most accommodations that are requested by an employee or in this case, an applicant. Employers must be careful when interviewing candidates or reviewing candidate performance on skills tests to make sure that a reasonable accommodation has been offered to an applicant that suffers from a disability. This does not mean that you have to allow another person to come in and answer the questions for the applicant that you are interviewing, but you may be required to provide a sign language interpreter or a large-type computer screen for an applicant. A final decision on what is reasonable will depend upon the size of your business and the reasonableness of the accommodation request.

How Much Should You Get Paid for Getting Dressed in the Morning?

Posted on March 20, 2013, Authored by Dean R. Dietrich, Filed under Employment

The United States Supreme Court will be considering whether the time that an employee spends putting on and taking off work clothes is a compensable act which would require payment for time spent in that activity. A case involving employees of U.S. Steel Corp. has been accepted by the Supreme Court based on the issue of whether or not the time spent by an employee changing into work clothes must be paid for by the Company. The Seventh Circuit Court of Appeals (which covers Wisconsin) held that the Company did not have to pay union-represented employees for time spent at the plant changing into work clothes where part of the work clothes included personal protective equipment. Other Courts of Appeals have held that personal protective equipment is not "clothes" and therefore the employer must compensate the employee for the time spent putting on that protective equipment. That is often called the "donning and doffing" of employer-required safety equipment. This case will focus on whether or not an employer has to pay an employee who comes to work and then puts on work clothing at the work location should be paid for that time. There was also a question whether the time spent in "travel" from the locker room to the actual work site after the clothing was put on should constitute "travel time" under the Fair Standards Labor Act. Thankfully, that issue is not being addressed by the Supreme Court, thus the activity of walking to your work station is not considered paid time under the Seventh Circuit Court of Appeals decision. One has to wonder whether employees getting dressed in the morning in work clothes will ask for compensation for the time spent getting dressed. This will depend upon the outcome of this Supreme Court review. Employers may want to consider having a distinct procedure for employees putting on personal protective equipment used in the workplace to avoid this controversy. We may need to look at this further depending upon the Supreme Court decision.

Government Paralysis - Potential Liability Still Exists

Posted on October 1, 2013, Authored by Dean R. Dietrich, Filed under Employment

The news today talks about "government paralysis" and the likelihood that government will not re-focus for several weeks until everything is decided regarding the continuing resolution debate and the debt limit debate. A caution to employers however, that the government paralysis does not mean that you are protected from potential liability for violation of discrimination laws or labor laws. The enforcement process will continue (or be picked up later) regardless of the paralysis experienced by our federal government. Potential liability ranges from discrimination on the basis of disability to failure to make proper overtime payments to employees. The provisions of the Fair Labor Standards Act and the Equal Employment Opportunity Laws will continue in effect and will be enforced by federal agencies that are not subject to the emergency shutdown or will result in future investigations and charges being filed. Employers are cautioned not to let their guard down and stop complying with current employment practices and employment policies. It is important to continue to strive for compliance with all aspects of federal and state law that will provide protections to employees. It is also important to continue educating your supervisors and managers about compliance with state and federal employment protections. If you fail to do so, you are increasing your company's potential for liability under these laws.

Accommodation for Disabled Applicant?

Posted on May 29, 2013, Authored by Dean R. Dietrich, Filed under Employment

We are seeing more and more requests from an applicant to have some type of accommodation for the individual to be considered for a vacant position. The Equal Employment Opportunity Commission recently issued an informal letter to a public employer outlining the duties of an employer to make an accommodation for an applicant that suffers from a disability. Legal Counsel for the EEOC made it clear that the requirements of Section 501 of the Rehabilitation Act of 1973 required a public agency to provide reasonable accommodation to qualified applicants for a vacant position, unless to do so would cause an undue hardship. The same requirement would exist under the Americans with Disabilities Act that is applicable to all private employers. In discussing what type of accommodation must be made to an applicant, Legal Counsel said that an "accommodation is a change in the work environment or in the way things are customarily done, that would enable an individual with a disability to enjoy equal employment opportunities." Legal Counsel went on to say that "the accommodation is "reasonable" if it "seems reasonable on its face," i.e., if it appears to be "feasible" or "plausible." An accommodation also must be effective in meeting the needs of an individual so for a job applicant, the accommodation should enable the applicant to have an equal opportunity to participate in the application process and be considered for a job. EEOC also stated that an employer must engage in an informal process (often known as the "interactive process") to clarify what the individual may need, and to identify the appropriate reasonable accommodation for the applicant to participate in the hiring process. This would necessitate the employer asking individual, relevant questions that would enable the employer to make an informed decision about any requests from the applicant for an accommodation. An employer may also require that there be documentation provided by the applicant to document or identify the applicant's disability and the functional limitations that the applicant suffers from. The employer may require that this documentation be from an appropriate health care or rehabilitation professional. This would include doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. An employer does not have to provide all accommodations that may be requested by an applicant. The employer does not have to provide an accommodation that would impose an "undue hardship" on the operation of the employer. It is important to understand that the undue hardship determination must be based on an individualized assessment of current circumstances that show whether a specific reasonable accommodation would cause significant difficulty or expense for the employer. Employers are experiencing more requests for accommodation from applicants seeking employment. In these cases, the employer must participate in an interactive process and address whether or not an accommodation is needed and can be provided for the applicant to be given an equal opportunity to be considered for a vacant position. Employers must be careful to do an interactive process by meeting with the individual and asking for information that may be needed to assess whether or not an accommodation is necessary and would actually work.