Tag Archives: job

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

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Filed under ADAAAA, civil rights, courts, Disability, discrimination, employment, federal, labor, legal decision, technology, Title VII

Safe Act for Victims of Domestic Violence of Sexual Assault

On October 1, 2013, the “Safe Act” becomes effective.  The Safe Act provides 20 days of unpaid leave to victims of domestic violence and sexual assault.  The employer can require that this unpaid leave be covered under FMLA, New Jersey FMLA, vacation, or personal leave.

The purpose of the Safe Act is to provide New Jersey victims with time to deal with matters related to an incident of domestic abuse or sexual assault.  The Safe Act covers:

  1. The employee,
  2. The employee’s child,
  3. The employee’s parent,
  4. The employee’s spouse,
  5. The employee’s domestic partner, or
  6. The employee’s civil union partner.

Within 12 months of the incident, the Safe Act’s purpose is to provide the victim of domestic abuse or sexual assault can:

  • Seek medical attention for, or recover from, physical or psychological injuries;
  • Obtain servies from victim services organization;
  • Obtain psychological or other counseling;
  • Participate in safety planning, temporarily or permanent relocate, or undertake other actions to increase safety;
  • Seek legal assistance or remedies; or
  • Attend, participate in, or prepare for court proceedings.

If the employer violates the Safe Act, the employee can ask for the following remedies: (1) Reinstatement; (2) compensation for lost wages and benefits; (3) an injunction; (4) attorney’s fees and costs; (5) civil find of $1,000 to $2,000 for a first time violation; and (6) a fine of $5,000 for any subsequent violations.

via Labor Employment Law Blog: New Jersey Provides Unpaid Leave to Victims of Domestic Violence.

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Filed under civil rights, courts, discrimination, employment, ERISA, federal, fees, Pending Legislation, state, wage

Associate attorney is the unhappiest job in America

ABA Journal reports on a Forbes story, which lists Associate Attorneys as the unhappiest at their job.  Legal Assistants make it to number 7 on the list.  The list was compiled by CareerBliss.

Heidi Golledge, chief executive of CareerBliss, told Forbes why associates are so unhappy. “In many cases, law firms are conducted in a structured environment that is heavily centered on billable hours. It may take several years for an associate attorney to rise to the rank of partner,” Golledge said. “People in this position rated the way they work and the rewards they receive lower than any other industry.”

CareerBliss based its list on reviews completed by more than 65,000 employees last year. The employees rated key factors that affect happiness on the job, including work-life balance, relationships with bosses and co-workers, work environment, job resources, compensation, growth opportunities, company culture, company reputation, daily tasks and control over daily work.

The top unhappiest jobs are:

  1. Associate attorney
  2. Customer service associate
  3. Clerk
  4. Registered nurse
  5. Teacher
  6. Marketing Coordinator
  7. Legal Assistant
  8. Pharmacy Technician
  9. Technical Support Specialist
  10. Case Manager

via Associate attorney is the unhappiest job in America, survey says – ABA Journal.

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Filed under attorneys, employment, law students

Giving up your password when looking for a job?

Should your potential employer require you to give up your password to Twitter? Facebook? LinkedIn? Will your comments, background information, age, nationality, pictures be used against you?

What if the employer does not use that information, but still has access to it?  Would that raise a concern that it was in fact used against a job applicant?  Allowing the requirement of social media passwords bring potential liability issues to employers.

Minnesota Lawyer (subscription required) has a very interesting article.   The Minnesota proposed bill, introduced by Rep. Mary Franson (R-Alexandria) seeks to ban employers from asking job applicants for their social media passwords as part of the job interview.  It is important to note, as stated by the article, that the bill does not discuss already hired employees and the use of employer laptops, computers, smartphones, etc.

Pending legislation in Minnesota includes H.F. 293, H.F. 611, S.F. 484, and S.F. 596.  All of these bills seek to ban employers fro requiring social network passwords as a condition of employment.

The National Conference of State Legislation reports that there are at least 29 states with introduced or pending legislation seeking to ban employers from requiring/asking for these social media passwords.

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Filed under civil rights, discovery, electronic discovery, Minnesota, Pending Legislation, Privacy Rights

Unionization Rates Continue to Decline

On January 23, 2013, the BLS released its annual report on the rate of unionization. Overall, the rate of unionization feel from 11.8% to 11.3%. Public sector workers had a 35.8 percent membership rate while the rate on unionization in the private sector dropped to 6.6%.

Significantly, however, union members continue to earn more than there non-union counterparts. As the report states:

In 2012, among full-time wage and salary workers, union members had median usual weekly earnings of $943, while those who were not union members had median weekly earnings of $742.

In addition to coverage by a collective bargaining agreement, this earnings difference reflects a variety of influences, including variations in the distribution sof union members and nonunion employees by occupation, industry, firm size, or geographic region.

via Adjunct Law Prof Blog: Breaking News. Unionization Rates Continue to Decline.

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Filed under labor, union, wage

New Md. Law May Be First in Country Banning Employers From Seeking Workers’ Social Media Passwords

In what could be the first such law in the country, Maryland has enacted a bill that would prohibit employers from demanding personal passwords to social media sites such as Facebook from job applicants and workers.

State lawmakers last week almost unanimously approved making such information private, in response to reports that a growing number of employers are seeking access to individuals’ personal social media accounts to gather information for job-related decision-making, Raycom News Network reports.

The bill will take effect as law after it is signed into law by the state governor, the Gazette reports.

The American Civil Liberties Union of Maryland favored the new measure. The state Chamber of Commerce opposed it.

While no one wants others to read private messages, the chamber had hoped lawmakers would recognize that there may be legitimate reason for employers to review social media sites, said lawyer and employment practitioner Elizabeth Torphy-Donzella of Shawe Rosenthal. Her Baltimore-based law firm represents the chamber.

Similar legislation is being pursued in California and Illinois and in Congress, the Baltimore Sun reports.

The Washington Post’s Capitol Business Blog says Michigan also is considering such a law.

via New Md. Law May Be First in Country Banning Employers From Seeking Workers’ Social Media Passwords – News – ABA Journal.

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Filed under civil rights, employment

Facebook and Job Applicants

Federal law clearly provides that employers must not discriminate against job applicants based on a number of factors, pursuant to Title VII, the ADA and ADAAA. What might employers find when they ask job applicants for their Facebook password?  Potentially sensitive information that could be used in a prohibitive manner when deciding who to hire – such as information regarding disabilities.

The following article was uploaded at EDD Blog:

Friday, Facebook threatened legal action against companies who require applicants provide usernames and passwords so prospective employers can see what applicants and their friends post on social networks. Now, it’s not clear what legal recourse Facebook has if businesses refuse to obey their demands, but shutting down the business’s Fan Page appears likely for violators. This action could cost firms tens of thousands or millions of dollars.

Erin Egan, Facebook’s Chief Privacy Officer had this to say about employers asking for applicant’s passwords:

“If you are a Facebook user, you should never have to share your password, let anyone access your account or do anything that might jeopardize the security of your account or violate the privacy of your friends,” Egan wrote. “We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do.”

Facebook’s stance highlights the changing climate which causes clashes between individual privacy rights and corporate protection. And, without a strong social media policy, firms not only face possible legal action, but lose what is becoming a mandatory marketing channel.

via edd blog online: You Need A Social Media Policy.

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Filed under civil rights, electronic discovery