Category Archives: Employment Litigation

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It’s Audit Season: Have You Audited Your Website’s Accessibility?

Audit season is in full swing. Businesses now are working with auditors on their tax and other audits to ensure compliance with various financial regulations. But there is one audit that many businesses have yet to undertake and have continued to miss over the last few years: the accessibility of their website. Many businesses continued to be stunned when receiving … Continue Reading

What’s in a Pronoun? Liability for Employers

Political correctness in the workplace has become increasingly complex. Employers who have referred to transitioning employees with the wrong pronoun have found themselves in the crosshairs of the EEOC. But what about those employees who do not identify with either gender and prefer a gender neutral pronoun? Say, what?… Continue Reading

Employer Exposure Increases: Emotional Distress Damages in FLSA Cases

The number of federal courts allowing plaintiffs to recover emotional distress damages in Fair Labor Standards Act (FLSA) retaliation cases is expanding, with the Fifth Circuit Court of Appeals last month joining two other circuits that have permitted such damages. The case Pineda v. JTCH Apartments, L.L.C. (5th Circuit December 19, 2016), involved maintenance employee Santiago Pineda, who lived … Continue Reading

Medical Marijuana and the Workplace

With the growing list of states legalizing marijuana, are workplace drug policies up in smoke? As the new year begins, Arkansas, Florida and North Dakota join the growing list of states that have legalized medical marijuana. Currently, 28 states* and Washington, D.C., have legalized marijuana use for certain medicinal purposes, and eight states** and the District of Columbia have legalized … Continue Reading

Catch-22 for Franchisors: The Joint Employment Dilemma

As government agencies steadily expand the concept of  joint employment, franchisors increasingly find themselves in a difficult position. Since August 2015, when the NLRB ruled in Browning-Ferris that entities with the ability to exercise direct or indirect control over workers can be joint employers (prior blog post here), franchisors have experienced increased scrutiny from both federal agencies and the … Continue Reading

Hope for Employers: Court Says Home Health Aides Can’t Bring Collective Action

Courts have been quick to allow one employee claiming to be due overtime to sue on behalf of others in the same job category by certifying a collective action, allowing that employee to represent the class and requiring the employer to provide contact information for others in the same job category.  However, in a case with potentially far reaching implications … Continue Reading

Even Planned Surgery May Be “Unforeseeable” Under the FMLA

Employees seeking leave under the Family and Medical Leave Act are supposed to give 30 days’ notice if the need for leave is “foreseeable,” but what does “foreseeable” mean? Based on a recent 11th Circuit Court of Appeals decision, even elective surgery which could be planned far in advance, if “relatively urgent,” would not be foreseeable and thus not require … Continue Reading

Even In Colorado, Employees May Be Terminated for Medical Marijuana Use In Violation of Company Drug Policy

In Coats v. Dish Network, LLC, the Supreme Court of Colorado upheld an employer’s decision to terminate the employment of a quadriplegic employee who worked as a customer service representative and who held a state-issued license to consume medical marijuana. Coats, who had been confined to a wheelchair since his teenage years, tested positive for marijuana during a random … Continue Reading

Second Circuit Confirms That Providing “Effective” Reasonable Accommodation Sufficient Under ADA and NYS Law

In Noll v. Int’l Bus. Machs. Corp., 13-cv-4096 (2d Cir May 21, 2015), the Second Circuit Court of Appeals addressed the extent to which, under the ADA and New York State law, an employee must be provided with the precise accommodation he or she requests and whether, if the employer offers a different type of accommodation, its failure to … Continue Reading

EEOC Has a Limited Duty to Conciliate, Supreme Court Rules

Before filing suit against an employer, the Equal Employment Opportunity Commission has a duty to notify the employer of the claim and give the employer an opportunity to discuss the matter. But the EEOC has no duty to engage in good faith negotiations with the employer, according to the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC (April … Continue Reading

Yes, Employers Can Win Summary Judgment in State Court

Given the opportunity, most defense lawyers will remove an employment discrimination case filed in state court to federal court because federal judges are more inclined to grant summary judgment, i.e. a judgment in favor of one party before the case goes to trial.  But as a recent case from Florida’s Third District Court of Appeal illustrates, an employer can … Continue Reading

In Employment Arbitrations, Prevailing Party Fee Provision “Chills” But is Not Cool

In recent years the United States Supreme Court has ruled in favor of businesses in several cases involving the enforceability of arbitration agreements.  But as illustrated by a recent decision by Florida’s Second District Court of Appeal, Hernandez v. Colonial Grocers, Inc., courts will decline to enforce arbitration agreements that have a “chilling effect” on the filing of employment-related … Continue Reading

Negative Consequences May Flow From Workers’ Compensation Denial

Your company just won its workers’ compensation case, and the employee was denied benefits.  Time to celebrate, right? WRONG. You may have just bought yourself a civil lawsuit for damages.

In Ocean Reef Club, Inc. v. Wilczewski and Leon, No. 3D09-2779 (Fla. 3d DCA March 21, 2012), the Third District Court of Appeal made two findings of which all … Continue Reading

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