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Searching for Articles published in November 2014.
Found 6 Results.

Adjust Job Duties

Posted on November 3, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the 7th Circuit Court of Appeals has reaffirmed the duty of employers to consider minor adjustments to job duties as a reasonable accommodation under the Americans with Disabilities Act. This decision, while dealing with the ADA, reinforces the position taken by the Equal Right Division in Wisconsin that adjustment of work duties assigned to an employee, even on a permanent basis, may be a reasonable accommodation that must be made by an employer. In this case, an employee was required, as part of her regular duties, to push a wheelchair with a resident during the course of the workday to a location where the employee was a hairdresser for residents of a nursing home. The employee suffered a permanent injury that prevented her from pushing the resident in a wheelchair, so the employer terminated the employee for inability to do the normal duties of her position. As the case wound its way through the courts, a motion for summary judgment was denied by the 7th Circuit Court of Appeals (which covers Wisconsin) so the matter has been sent back to the trial court on the factual issue of whether the wheelchair pushing responsibility was an essential function of the job held by the employee. One of the findings from the 7th Circuit decision was that "job restructuring" is one of the accommodations that an employer must consider under the Americans with Disabilities Act. This has always been the law in Wisconsin because of court statements in various decisions suggesting that an employer must modify the job duties of a disabled employee as part of the reasonable accommodation requirement under the Wisconsin Fair Employment Act. In fact, some courts have suggested the employer would be obligated to modify up to 80 percent of the employee's job duties as part of the duty to accommodate a disability. That is not the ruling in the 7th Circuit decision; however, the new decision does support this notion of a duty to adjust job responsibilities as part of a reasonable accommodation. Every case must be considered on its own merits depending upon the job tasks and the limitations the employee may have. Employers must be very careful when considering termination of an employee because they cannot do all of the job duties of the position. That may not be the right decision depending upon the facts.

NLRB Attacks Independent Contractor Status

Posted on November 25, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the National Labor Relations Board has attacked the test that is generally used to determine whether or not an individual is an independent contractor or is considered an employee eligible for voting to be represented by a union. In the recent decision of FEDEX Home Delivery, 361NLRB No. 55 (2014), the NLRB issued a decision that departed from recent federal court decisions and held that the FEDEX drivers were not independent contractors because they were not “rendering services as part of an independent business.” In other words, the NLRB found that the company exercised a high-level of control over how the work was performed by these drivers and therefore held they were not an independent contractor but rather an employee of the company eligible to vote for union representation. The importance of this decision is that it contradicts the decisions made by several federal courts that relied upon the individuals “entrepreneurial opportunity for gain or loss” as a very important factor in determining whether someone was an independent contractor. This factor centered around the opportunity of the individual to engage in a business activity and enjoy the fruits of performing the work as an independent “entrepreneur” that was working for himself rather than for a company. This “entrepreneurial opportunity for gain or loss” test is what had been relied upon by various federal courts to hold that an individual was an independent contractor because they enjoyed the fruits of their labor rather than simply working for someone else. There are a number of tests regarding independent contractor status. One test applies to worker's compensation benefits, another test applies to unemployment compensation benefits and another test applies to whether the employee is covered under the Fair Labor Standards Act. All of these tests center around whether the employee is engaged in a separate business or whether the company has the right to control the activities and work of the individual. The movement by the National Labor Relations Board focuses more on the right to control test and is another weakening of the ability of a company to operate its business in the manner in which it is best suited which could include hiring independent contractors to perform work that also benefits the company.  It is not often this issue arises in existing companies but caution must be exercised because the efforts of the NLRB are to find that individuals are employees of the company and therefore eligible to vote for union representation. Employers should be careful in their characterization of an independent contractor to make sure that all of the tests are met to avoid potential employee liability.

Holiday Party - Celebration?

Posted on November 24, 2014, Authored by Dean R. Dietrich, Filed under Employment

Everyone is thinking about the holiday season. Many human resource professionals are wondering whether or not the company should sponsor a holiday party and what limits should be applied to such an event. The best answer is to be reasonable and to be more concerned about the safety of employees because of a potential disaster that could occur instead of worrying about liability to the company. What I mean is we need to be concerned about someone having too much fun and getting into an accident or harming someone else by driving under the influence of alcohol. This is a very sad event that may be difficult to foresee but important to be concerned about. So what are the options and recommended practices? Have a seasoned person (not company official) be the bartender; Provide limited drink tickets (2 is the norm) although that will not prevent employees from giving their tickets to others; Make sure you provide food of some type to help limit the impact of alcohol consumption; Assign certain employees to watch over the behavior of others without serving as the “alcohol police” for the event; Take bold steps if needed to insure that an employee is not driving away from the party under the influence of alcohol. Holiday parties can be a fun event but someone needs to be mindful of what is happening at the event. Yes, there is potential for liability to the company but more importantly, there is potential for much more serious consequences such as the loss of a co-worker.

Labor Unions Have Another Reason to Be Thankful: NLRB Serves Up Holiday Season Gift

Posted on November 26, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

On November 21, 2014, the National Labor Relations Board (“Board”) served up a holiday season gift to organized labor—in the form of a new, significantly more “union friendly” view of “solicitation” policies utilized in many non-union workplaces [designed to lawfully limit pro-union solicitation, and other forms of solicitation, which can hamper employee productivity]. The decision is Conagra Foods, Inc., 361 NLRB No. 113 (2014), found here Conagra Foods. At Conagra’s non-union food processing plant, located in Troy, Ohio, Conagra maintained the following solicitation/distribution rule: In the interest of all associates and the Company, no solicitation or distribution of non-business related material is allowed during work time or in work areas. Solicitation may include solicitation for funds or contributions for organizations from customers, associates, or person from other firms doing business with the Company, baseball pools, raffles, the sale of cosmetics, etc. In addition, trespassing, soliciting or distributing literature by any non-associate on the Company’s property is prohibited. Although the Board concluded that the above policy was lawful [which is interesting, because the policy language is markedly similar to the solicitation language a Board ALJ recently invalidated in the Mercedes-Benz case: link to decision, it determined that Conagra’s decision to discipline an employee, who was “an active and open union supporter,” for violating the policy was illegal. More specifically, the Board was troubled by Conagra’s decision to issue a verbal warning to this employee, when she “merely informed her [two] coworkers,” during an interchange that lasted “no more than a few seconds,” that she would place blank authorization cards [used to voice employee support for union representation] in their workplace lockers as previously agreed—at a time when one coworker was waiting for the production line to start, and the other coworker was actively engaged in work, and temporarily stopped working. 

DOJ Provides Guidance to School Districts

Posted on November 18, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

Over the weekend, I was able to read a letter from the U.S. Department of Justice, Civil Rights Division, which addressed the responsibility of public schools to ensure effective communication with students with hearing, vision, or speech disabilities. Three Federal laws – the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973 – uniquely address the obligations of public schools in this area. Many times, an individual’s education program under the IDEA will meet the requirements of the other Federal laws, but at times, the District must comply with both Federal laws independently. To help with the interplay of the IDEA and Title II requirements, the U.S. Department of Justice provided a lengthy FAQ which is linked here http://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-effective-communication-201411.pdf. Take some time to review the FAQ and if you have questions about how these issues may affect your District – let’s discuss!

Are Employers Receiving A Special Christmas Gift This Year?

Posted on November 20, 2014, Authored by Dean R. Dietrich, Filed under Employment

Some commentators have suggested that the recent Republican vote will limit the activity of the National Labor Relations Board and avoid the potential for more activist activity from the Board. It is not clear, however, how the House and Senate can effectively limit the activism that has been predicted absent drastic legislative changes. As Christmas approaches, the National Labor Relations Board may become very active in presenting “gifts” to employers such as the quickie election requirements being adopted as well as new regulations regarding the “micro” bargaining units. Why are these things likely to happen in the face of the recent Republican majority election? The appointment of one of the NLRB Board members expires on December 31 and there is concern the new majority in Congress will not appoint a new member to give a full five-member majority to the NLRB. If that happens, the NLRB could be stymied from implementing its activist agenda. This may mean that a number of NLRB initiatives will be implemented over the next 30 days while the employee-friendly majority still exists. Things are coming down to the wire in DC and we may see some large pronouncements from the NLRB before the end of the year. Employers must be prepared to respond to the quickie election rules and other election proceeding changes to avoid giving an advantage to union organizers. Sensitivity to employee relations are critical at this time to make sure your company is preventing union organizing efforts.