Alcoholism and drug addiction are often disabilities under ADA, the Americans with Disabilities Act. That law requires the employer to give workers time off for treatment. However, it does not require an employer to allow an employee be under the influence of illegal drugs or alcohol at work. Nor does it permit an employee to drink alcohol or use drugs at work.
In a recent case before the 7th Circuit Court of Appeals, Diane Ames worked for The Home Depot, a major home improvement retailer. After five years, Ames approached the employer and disclosed that she was an alcoholic. She requested aid from the Employee Assistance Program or EAP. Home Depot allowed Ames to take a month of paid leave for rehab.
Ames returned to work after signing an EAP agreement stating that she would not drink alcohol or be under the influence of alcohol at work. The agreement specified that the consequence for either behavior was (more…)
In the most recent case, the Supreme Court ruled that an employee who verbally complains to the employer about wages, overtime, salary, exempt status or other concerns is protected from retaliation, just as an employee who files a written complaint is.
Many employers expected such a ruling and have long refrained from retaliation against employees who lodge verbal complaints regarding wage and hour issues.
Earlier this year, the Supreme Court ruled that a negative action against an employee’s spouse or relative was also illegal retaliation, under FLSA.
In Kasten v.Saint-Gobain Performance Plastics, employee Kevin Kasten complained repeatedly that he and other hourly employees were entitled to payment for the time spent putting on and taking off special protective gear required in the industry. In particular, Kasten complained that the location of the time clocks – between the work floor and the locker room used for changing – made it impossible for employees to be paid for this time, as the FLSA requires.
Saint-Gobain argued that Kasten’s many gripes and confrontations with supervisors about this payment practice did not constitute an actual complaint, because it was not in writing. They argued that Kevin Kasten was fired for not clocking in and out properly, not as illegal retaliation for his many complaints. They argued that if (more…)
The National Labor Relations Board or NLRB recently sued an employer when a worker was fired for ranting about her supervisor on Facebook. Although the case was settled out of court, the employer had to pay a hefty financial settlement to the employee for infringing on her rights to free speech.
Under federal law, employees are permitted to discuss wages, working conditions and hours with their coworkers and others. This right is protected under the freedom of speech in the Constitution, and in Section 7 of the National Labor Relations Act or NLRA. That law gives employees the right to join together to improve working conditions, within a labor union or outside of a union.
State law is also an issue. Several states prohibit an employer from firing a worker based on legal conduct on the employee’s own time. These states include California, Connecticut, New York, North Dakota and Washington.
Apparently, the NLRB has decided that when an employer forbids negative remarks on Facebook, the employer violates the employee’s rights to discuss working conditions under the NLRA.
In the case before the Supreme Court American Medical Response or AMR, a Connecticutambulance company, had a policy forbidding employees from posting negative remarks online about the company or supervisors. Employee Dawnmarie Souza violated that policy in a Facebook update disparaging her supervisor, posted on her own time. A customer (more…)
One of the most common complaints received by the Wage and Hour Division of the U.S. Department of Labor is that an employee has been deprived of overtime wages, due to being misclassified as an exempt salaried worker.
Increasingly, the courts are finding in the employees’ favor in these cases, according to attorney Howard Radzely with the law firm of Morgan, Lewis & Bockius. While some employers believe that they can avoid overtime simply by proclaiming an employee “exempt,” this has not proven to be the case.
The federal FLSA or Fair Labor Standards Act acknowledges five categories of exempt employees:
Professionals (including doctors, lawyers and creative artists)
Certain Computer Professionals such as System Analysts and Programmers
However, the courts are increasingly interpreting those classifications very narrowly.
In one recent example, an appeals court ruled that sales reps for pharmaceutical giant Novartis were not exempt employees partly because, by law, they can distribute samples and make a sales pitch, but cannot sell drugs. Only a licensed pharmacist can sell drugs legally.
In another case, appeals courts have turned in different opinions on whether managers of retail stores are genuinely exempt employees. In Morgan v. Family Dollars Stores Inc., the Supreme Court ordered the retail chain to pay $35.6 million in overtime to 1,424 retail store managers. The court found that the “managers” were not exempt executives because they: (more…)
The federal Ninth Circuit Court of Appeals recently ruled that an employer can require an employee to undergo a fitness-for-duty exam based on the employee’s volatile behavior, as a pre-emptive measure to prevent workplace violence or harmful conduct, particularly in a hazardous job.
In practical terms, this ruling means that when an employee threatens other workers, has explosive temper tantrums or otherwise acts in an aggressive or hostile manner, the employer does not have to wait to request (more…)