February 2020 E-Update

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More NLRB Advice Memos – Social Media Activity and Scope of Contract Language

In the latest batch of Advice Memoranda from the National Labor Relations Board, the Office of General Counsel (OGC) offers further guidance to employers, both unionized and non-union. Advice Memoranda contain the recommendations of the OGC to the Board on specific issues. While several are years old and of limited interest, two more recent memos provide guidance on the issues of protected v. unprotected social media activity and scope of contract language. For more, click here.

“The ADA Does Not Protect Persons Who Have Erratic, Unexplained Absences, Even When Those Absences Are a Result of a Disability.”

So said the U.S. Court of Appeals for the Seventh Circuit, in finding that an employee was not qualified for her job based on attendance and performance reasons unrelated to her disability. For more, click here.

New Form I-9 Issued, Begin Using No Later Than 5/1/2020. The United States Citizenship and Immigration Services has issued a new version of Form I-9, which is used to verify the identity and employment authorization of employees. Its use is mandatory as of May 1, 2020. Until that date, employers may continue using the older version, dated July 17, 2017, although USCIS directs employers to begin using the new form as of January 31, 2020. For more, click here.

Inability to Work for Specific Supervisor ≠ Disability. Reiterating the long-standing principle under the Americans with Disabilities Act that an employee must be unable to work a broad class or range of jobs, the U.S. Court of Appeals for the Second Circuit found the employee, who could not work only for his supervisor, not to be disabled within the meaning of the ADA. For more, click here.

Pre- and Post-Shift Activities May Be Compensable Work. Such activities for prison guards, which included security screenings and shift transition briefings, were found to be integral and indispensable to their principal security activities, according to the U.S. Court of Appeals for the Tenth Circuit. For more, click here.

Be Clear About What Accommodations Are Being Provided. A recent case reminds employers about the need to be very clear about what accommodations are being provided to disabled employees. For more, click here.

No Pretext Where Employer Had “Honest Belief” in Employee’s Misconduct. An employer is entitled to take action based on its honest belief that an employee has engaged in misconduct, reiterated the U.S. Court of Appeals for the First Circuit. For more, click here.

Employer May Establish Qualifications for Promotional Decisions. An employee’s belief that she was better qualified than the successful candidate was not determinative, according to the U.S. Court of Appeals for the Seventh Circuit. For more, click here.

Employees Who Have Signed Arbitration Agreements Waiving Their Rights to Participate in an FLSA Collective Action Need Not Be Provided Opt-in Notice. The U.S. Court of Appeals for the Seventh Circuit established a standard for when a court may authorize notice to potential plaintiffs of their opportunity to join a “collective action” (i.e., a lawsuit on behalf of a group of similarly situated employees) under the Fair Labor Standards Act, even where the employees have allegedly entered into mutual arbitration agreements that waived their rights to join the action. For more, click here.

Philadelphia’s Salary History Ban Is Upheld.  The U.S. Court of Appeals for the Third Circuit overturned a federal district court’s partial injunction of Philadelphia’s ordinance intended to help address the gender and racial pay gap by banning employers from asking about or relying upon an applicant’s salary history. For more, click here.

DOT Advises Caution as to CBD Use.  The Department of Transportation prohibits the use of marijuana by DOT-regulated safety-sensitive employees (e.g. commercial truck drivers), and has now addressed the use of increasingly prevalent cannabidiol (CBD) products. For more, click here.

Last month, pending official guidance for employers from the Centers for Disease Control on how to address Coronavirus (which has now been named COVID-19), we provided recommendations to employers in our January Top Tip – Coronavirus in the Workplace: A Practical Guide for Employers, which extrapolated from CDC guidance on past outbreaks. Now, the CDC has issued guidance specific to COVID-19 that offers suggestions for employers to take now to address illness generally in the workplace, to plan for a possible COVID-19 outbreak in the U.S. and to consider in developing an outbreak response plan. For more, click here.