May 2018 E-Update


Click here to view entire E-Update as a PDFRECENT DEVELOPMENTS

NLRB Releases More New Advice Memos

Following the release of a multitude of advice memoranda earlier this year, as we reported in our February 2018 and March 2018 E-Updates, the National Labor Relations Board’s Office of the General Counsel (OGC) has now released additional memoranda. For more, click here.

Federal Appellate Courts Provide Guidance on Essential Functions Under the ADA

Two U.S. Courts of Appeals have issued opinions on the essential functions of a job under the Americans with Disabilities Act, specifically the ability to work overtime and the ability to work rotating shifts. For more, click here.


ADEA Protects Applicants as Well as Employees from Disparate Impact

The U.S. Supreme Court had previously ruled that the Age Discrimination in Employment Act prohibits employment practices that disparately impact older employees, and the U.S. Court of Appeals for the Seventh Circuit has now expanded that ruling to include applicants.  For more, click here.

Request for “a Few Weeks or a Few Months” of Leave Was Not Reasonable

A worker’s request for “a few weeks or a few months” of leave was deemed to be a request for indefinite leave, which is not a reasonable accommodation as a matter of law under the Americans with Disabilities Act, according to the U.S. Court of Appeals for the Third Circuit. For more, click here. For more, click here.

Harassment Claim May Be Based on Demand for Sexual Favors for a Third Party

The U.S. Court of Appeals for the Fifth Circuit held that a sexual harassment claim may be based on a demand that an employee date a potential client in order to receive a bonus. For more, click here.

Philadelphia Wage Inquiry Ban Found Unconstitutional; Wage History Ban Upheld

Philadelphia’s recently-enacted ordinance was found to be illegal to the extent it prohibits an employer from asking about an applicant’s salary history (the “Inquiry Provision”), but legally prohibits employers from relying on wage history in establishing an employee’s salary (the “Reliance Provision). For more, click here.

Employer Illegally Withheld Benefits from Eligible Voters Granted to Non-Voting Employees

The National Labor Relations Board held that the employer violated the National Labor Relations Act when it implemented better health benefits for all employees except those eligible to vote in an upcoming union election. For more, click here.

Maryland Federal Court Recognizes Discrimination Claim Based on “Perceived” National Origin

The U.S. District Court for the District of Maryland held that a claim of perceived national origin is actionable under Title VII, rejecting the employer’s argument that Title VII protects only actual national origin. For more, click here.

OFCCP Extends Moratorium on TRICARE Enforcement

The Office of Federal Contract Compliance Programs announced that it was extending its five-year enforcement moratorium for TRICARE providers for another two years, and expanding the moratorium’s coverage to Veterans Affairs Health Benefits Program providers. For more, click here.

TOP TIP: Employment Action May Still Be Adverse Even If Employee Does Not Mind

A recent case expands the definition of an adverse employment action on which a discrimination claim may be based. Typically, an “adverse” employment action is one to which the plaintiff objects; but in Vinson v. Koch Foods of Alabama, LLC, the U.S. Court of Appeals for the Eleventh Circuit found an adverse action existed despite the fact that the employee did not mind the change and even received a raise. For more, click here.