Management's Workplace Lawyers

July 2017 E-Update

July 31, 2017

Important New Agency Documents for Employers

Federal agencies have released several documents of significant interest to employers: a revised mandatory I-9 Employment Eligibility Verification form, a new version of the mandatory USERRA poster, an electronic OSHA form for the upcoming requirement to report electronically workplace injuries and illnesses, and a revised online OSHA whistleblower complaint form.

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Employees' Disloyal Posters Exceeded Protected Right to Engage in Concerted Activities

The U.S. Court of Appeals for the 8th Circuit found that employees’ posters, which suggested that their employer’s sandwiches posed a health threat to customers, were so disloyal that they exceeded the employees’ right to engage in concerted activities under the National Labor Relations Act.

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Employer May Be Required to Permit Medical Marijuana Use as Reasonable Accommodation

Massachusetts’ highest state court ruled that an employer can be held liable under state anti-discrimination laws for firing an individual for using medical marijuana. 

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DOL Regulation Prohibiting Employer Retention of Tips Is Invalid - And Will Be Rescinded

The U.S. Court of Appeals for the 10th Circuit found invalid the Department of Labor’s regulation that prohibits employers from retaining tips regardless of whether they utilize the tip credit towards the minimum wage requirement. Moreover, the DOL proposes to rescind the regulation. 

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DOL To Revive Opinion Letters

The Department of Labor announced that it will once again begin issuing opinion letters, a practice that had been discontinued in 2010.

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DOJ Rejects EEOC's Expansion of Title VII to Include Sexual Orientation

In a closely-watched case pending before the U.S. Court of Appeals for the 2nd Circuit, Zarda v. Altitude Express dba Skydive Long Island, the Department of Justice has taken the position that Title VII’s prohibition on sex discrimination does not include sexual orientation.

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Single Use of N-word Can Create Hostile Work Environment

The U.S. Court of Appeals for the 3rd Circuit found that a single sufficiently severe racial epithet might be enough to create a hostile work environment in violation of Section 1981.  

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Attendance Is Essential Function for Temporary Employee

A leave of absence is not a reasonable accommodation for a temporary employee, according to the U.S. Court of Appeals for the 10th Circuit. 

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New Delaware Law Prohibits Pay History Inquiries

Joining Massachusetts, Oregon, New York City and Philadelphia in an attempt to address the gender pay gap, Delaware has passed a law prohibiting employers from asking applicants about their compensation history.

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TOP TIP: Document Deviations From Normal Procedures!!!

In a prior Top Tip, we discussed the importance of documenting an employee’s performance issues, but it is equally important to document any decisions to deviate from normal procedures, as the failure to do so can suggest improper motives for the deviations.

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