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When Does Disability Leave Become an Unreasonable Accommodation?

by Martin Salcedo, Esq. - The Human Equation on 7/9/2014
court room

When has an employer done enough to avoid liability for disability discrimination? Though hard and fast rules are rare in employment discrimination cases, particularly those involving disabilities, the Tenth Circuit Court of Appeals recently held that employers are almost never required to provide more than 6 months leave to an employee with a disability.

The quality versus cost argument is nothing new especially when it comes to insurance. Consumers who pay less tend to get less, whether in the form of coverages, limits or financial security. And, when people choose cost over quality, it usually means they are uninformed about what they really need.

In Hwang v. Kansas State University, an assistant professor working under a one year employment contract was diagnosed with cancer. KSU gave Ms. Hwang a six-month paid leave of absence so she could get treatment. On the advice of her doctor, Ms. Hwang requested additional time off. According to Ms. Hwang, KSU refused her request and effectively terminated her employment.

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Warning: Whistleblowers Must be Handled with Care

by Martin Salcedo, Esq. - The Human Equation on 6/4/2014
judge's gavel

Though dealing with a disgruntled employee can be hard, various anti-retaliation protections make it even harder when an employee’s complaints or conduct is protected by law. A 2013 Congressional Report identified 40 different federal whistleblower and anti-retaliation laws, including:

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Is There a Bully in Your Workplace?

by Martin Salcedo, Esq. - The Human Equation on 4/23/2014
workplace bully

Chances are there is a bully in your workplace, and that’s bad for business. The Workplace Bullying Institute (WBI) defines bullying as repeated mistreatment involving physically or verbally abusive conduct that is threatening, intimidating or humiliating, or that interferes with or prevents work from getting done. According to the WBI’s 2014 Workplace Bullying Survey:

  • 27% are or have been victims of workplace bullying
  • 21% have witnessed workplace bullying
  • 23% are aware of workplace bullying
  • 65 million workers are affected by workplace bullying

Though the frequency of workplace bullying may come as a surprise to some, the consequences should not. Workplace bullying typically increases employee turnover, decreases productivity, reduces job satisfaction, undermines morale, increases workers’ compensation costs and increases employment-related litigation costs.

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Religious Garb and Grooming Accommodations under Title VII

by Martin Salcedo, Esq. - The Human Equation on 3/12/2014
woman putting on sari

According to the Equal Employment Opportunity Commission, charges of religious discrimination brought under Title VII of the Civil Rights Act are steadily increasing. These charges often involve religious dress and grooming practices, such as:

  • wearing religious clothing or articles, such as a Muslim hijab (headscarf), a Sikh turban or a Christian cross
  • observing a religious prohibition against wearing certain garments, such as a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts
  • adhering to shaving or hair length observances, such as a uncut hair and beard (Sikh), dreadlocks (Rastafarian) or peyes/side locks (Jewish)

    Title VII, which protects all aspects of religious observance, practice and belief, defines religion very broadly. It protects not only traditional, organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.

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Prevent Holiday Celebration Litigation

by Martin Salcedo, Esq. - The Human Equation on 12/4/2013

The annual holiday party is an excellent opportunity for employees to strengthen bonds by mixing and mingling and for senior managers to connect with employees they might not otherwise interact with throughout the year. Holiday parties often generate feelings of family and unity in the workplace. They may also lead to litigation.

Since holiday parties are generally viewed work events, most employees know not to cross the line. When alcohol is involved, however, lines may get blurry and employers may get sued. Off-color comments, racy jokes or inappropriate flirty behavior may lead to claims of unlawful discrimination or harassment. Alcohol-related car accidents caused by those attending the party may lead to claims of negligence.

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Who is a Supervisor under Title VII? Why does it Matter?

by Martin Salcedo, Esq. - The Human Equation on 7/17/2013
supervisor and employee

Who is considered a supervisor under Title VII? Since our last article discussing Vance v. Ball State University, the U.S. Supreme Court has given us the answer. According to the Court, a supervisor is a person

empowered by the employer to take tangible employment actions against the victim; to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Vance involved allegations of racial harassment and discrimination in violation of Title VII. Though the parties disputed the precise nature and scope of the harasser’s duties, it was clear that the harasser did not have the power to hire, fire, demote, promote, transfer or discipline the plaintiff. Given the harasser’s inability to take a tangible employment action against the plaintiff, the Court held that the harasser does not qualify as a supervisor under Title VII. More...

EEOC Focusing on Employers Using Criminal Background Checks

by Martin Salcedo, Esq. - The Human Equation on 6/18/2013
background check

In a previous article we discussed the Equal Employment Opportunity Commission’s (EEOC) position on the use of arrest and conviction records in the employment context. According to the EEOC, Title VII of the Civil Rights Act (Title VII) prohibits the use of arrest and conviction records in a manner that discriminates on the basis of race, color, national origin, religion, or sex. The EEOC recently reaffirmed its position by filing two lawsuits involving the use of criminal background records.

BMW Manufacturing Co.

The EEOC claims that BMW’s criminal conviction policy, which disproportionately screened out African Americans, is not job related and consistent with business necessity. The lawsuit alleges that BMW’s policy is a blanket exclusion that does not provide for an individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the workers’ respective positions. More...

The New Form I-9: What’s Different?

by Martin Salcedo, Esq. - The Human Equation on 4/30/2013
paperwork

Those of you following us on Facebook or Twitter know that the U.S. Citizenship and Immigration Service (USCIS) recently revised the Employment Eligibility Verification Form (Form I-9). Though optional since early March 2013, the revised Form I-9 will become mandatory on May 7, 2013. As of this date, employers must stop using prior versions of the Form I-9 and begin using the version dated 03/08/13. (The version date can be found at the bottom of the form.)

I-9’s are used by employers to verify the identity and employment authorization of every new employee hired in the United States, regardless of citizenship. This process is authorized by the Immigration Reform and Control Act to preclude the unlawful hiring, recruiting or accepting a fee for the referral of aliens who are not authorized to work in the United States. More...

Individual Liability under the Fair Labor Standards Act

by Martin Salcedo, Esq. - The Human Equation on 4/3/2013
alarm clock

Did you know that individuals can be held personally liable for violations of the Fair Labor Standards Act (FLSA)? The FLSA’s broad definition of employer includes “any person acting directly or indirectly in the interests of an employer in relation to an employee.” The Eleventh Circuit Court of Appeals recently considered when it is appropriate to hold someone personally liable for wage and hour violations under the FLSA.

In Lamonica v. Safe Hurricane Shutters, Inc., former employees sued their employer to recover unpaid overtime wages under the FLSA. The employees also sued two of the corporate-employer’s directors, arguing that they sufficiently controlled the corporation to justify holding them personally liable under the FLSA. To support their case against the directors, the employees showed that: More...

Employers May See More Sexual Harassment Lawsuits

by Martin Salcedo, Esq. - The Human Equation on 11/20/2012

An employer’s liability for sexual harassment under Title VII of the Civil Rights Act depends on whether the harasser is a supervisor. If the alleged harasser is the victim’s co-employee, the employer may have various defenses to liability. However, if the harasser is a supervisor, Title VII’s strict liability standard may be triggered and the employer may be left defenseless.

So, who is considered a supervisor under Title VII?

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Florida's Minimum Wage Increasing on January 1, 2013

by Martin Salcedo, Esq. - The Human Equation on 10/24/2012

Effective January 1, 2013, Florida’s minimum wage will be $7.79 per hour. This represents an increase of 12 cents over the 2012 minimum wage of $7.67 per hour. The minimum wage for tipped employees will increase by the same amount to $4.77 per hour.

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Condominium Governance: For Emergency Use Only

by Anita Byer, President - The Human Equation on 10/9/2012

For Board Member education as defined by the State of Florida, Click Here.
For Community Associtation Manager Continuing Education, Click Here.

During an emergency, decisions need to be made fast. There usually isn’t time to go “by the book.” This is why Florida’s Condominium Act authorizes association boards to exercise additional emergency powers More...

Is Overtime Pay Required for Managers?

by Martin Salcedo, Esq. - The Human Equation on 9/17/2012

Employers who rely on job titles when determining whether an employee is exempt from federal overtime pay requirements risk being named as defendant in a wage and hour lawsuit.

Employers often assume that the Fair Labor Standards Act’s (FLSA’s) executive exemption automatically applies to any employee given the title of “manager.” The reality, however, is that the manager title has virtually nothing to do with whether an employee qualifies for the executive exemption. More...

Navigating the Family and Medical Leave Act with the Department of Labor’s elaws® Advisor

by Martin Salcedo, Esq. - The Human Equation on 4/10/2012

The Family and Medical Leave Act (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing eligible employees reasonable leave for various qualifying reasons, including health, military caregiver, and family leave. Though simple in theory, the FMLA can be quite complicated in practice. Since violations of the FMLA can be costly, it is important to understand what the law requires. More...

Eleventh Circuit Pereda Case: FMLA Protection for Employees Not Eligible for FMLA Leave?

by Martin Salcedo, Esq. - The Human Equation on 2/22/2012

The Eleventh Circuit Court of Appeals recently answered an interesting and important question regarding the Family and Medical Leave Act (FMLA): Does the FMLA protect a pre-eligibility request for post-eligibility leave? More...

Paying Employees for Travel Time

by Martin Salcedo, Esq. - The Human Equation on 1/6/2012

Under the Fair Labor Standards Act (FLSA), employers are required to pay employees the appropriate minimum wage and overtime rate for every compensable hour worked. Determining the number of hours worked by an employee is ordinarily a routine matter. However, when travel time is involved, employers must understand that the FLSA treats different types of travel, well, differently. More...

Eleventh Circuit Court of Appeals Gives Employers New Ammunition to Fight FLSA Claims

by Martin Salcedo, Esq. - The Human Equation on 9/15/2011
In the past, we have written about why employers should generally fear violations of the Fair Labor Standards Act (FLSA) more than violations of other employment-related laws, such as Title VII of the Civil Rights Act or the Family and Medical Leave Act. The FLSA’s broad applicability, plaintiff-friendly provisions, and technical nature, have made it very popular with plaintiffs’ attorneys. However, a recent ruling by the United States Court of Appeals for the Eleventh Circuit appears to offer employers a way to minimize the damages caused by being sued under the FLSA. More...

Supreme Court Adopts "Cat's Paw" Theory of Liability in Staub v. Proctor Hospital

by Martin Salcedo, Esq. - The Human Equation on 7/6/2011
From The Monkey and the Cat, Jean de la Fontaine

No more are the princes, by flattery paid
For furnishing help in a different trade,
And burning their fingers to bring
More power to some mightier king.

Some time ago, we posed the following question to our readers: Can an employer be held liable under Title VII of the Civil Rights Act (Title VII) for racial discrimination even though the actual decision-maker did not know that the employee was being fired because he was African American?More...

UPDATE: Florida’s Minimum Wage is Going up on June 1, 2011

by Martin Salcedo, Esq. - The Human Equation on 5/10/2011

Florida employers must prepare for an increase in the minimum wage. On May 3, 2011, Florida’s Agency for Workforce Innovation announced that effective June 1, 2011, Florida’s minimum wage will be $7.31 per hour, which is six cents more than the current federal minimum wage of $7.25 per hour. This increase is not only unexpected, it is unusual.More...

At Last! The EEOC Publishes Final ADA Amendments Act Regulations

by Martin Salcedo, Esq. - The Human Equation on 4/14/2011

Enacted on September 25, 2008, the ADA Amendments Act (ADAAA) directed the Equal Employment Opportunity Commission (EEOC) to amend its regulations to reflect the changes made to the Americans with Disabilities Act by the ADAAA. Though the ADAAA became effective on January 1, 2009, the final regulations were not published by the EEOC until March 25, 2011. They will not become effective until May 24, 2011.

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Categories: 2011, Human Resources

The Human Equation's newsletters and publications are intended as an information source for the clients and friends of the firm. Their content should not be construed as legal advice, and readers should not act upon the information in these publications without professional guidance. Please note that newsletters and publications that are archived by The Human Equation are not updated after initial publication and may not contain the most current information available.

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