Obesity Continues to Divide Courts: Washington’s High Court Says Obesity Qualifies as an Impairment (US)

As we previously discussed here and here, courts are split regarding the extent to which obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”). The Second, Sixth, Seventh and Eighth Circuit Courts of Appeal have held that obesity must be accompanied by an underlying physiological disorder for it to constitute a disability, whereas the First Circuit and some district courts have come to the opposite conclusion, particularly when the plaintiff presents expert testimony supporting the contention that obesity is a physical impairment, regardless of an underlying physiological condition. Continue Reading

EEOC Opens Online Filing System: Are You Ready for the September 30, 2019 Pay Data Reporting Deadline? (US)

As we have reported previously (here, here, here and here), sweeping changes to employer obligations under the Equal Employment Opportunity Commission’s (EEOC) EEO-1 reporting requirements are under way. By September 30, 2019, employers must report 2017 and 2018 pay data for their workforce (referred to as “Component 2” data), broken down by race/ethnicity and sex. On July 15, 2019, the EEOC officially opened to employers the Component 2 EEO-1 online filing system. Per the EEOC, the file upload process will become available in August 2019. Continue Reading

Playback time – the rights and wrongs of covert recordings in the workplace (UK)

Voice Recorder

Phoenix House Limited -v- Stockman has been kicking round the Employment Tribunal system ever since Ms Stockman was dismissed in 2013.  It has something for all the family – discrimination, some victimisation, a touch of whistleblowing and a light dusting of trust and confidence.  However, on its second trip to the Employment Appeal Tribunal at the start of this year, a new question was up for consideration – is it necessarily dismissible conduct to record covertly a meeting with your employer?

Stockman was not dismissed for that reason, but the question arose in connection with the calculation of her unfair dismissal compensation.  If it were conduct warranting dismissal, should there be some greater deduction from that money to reflect the probability that if she had not been dismissed when she was, she would have been sacked when Phoenix House discovered what she was doing?

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DOL Offers New Wage and Hour Compliance Advice (US)

On July 1, 2019, the U.S. Department of Labor (“DOL”) Wage and Hour Division issued a trio of fact-specific opinion letters offering employers guidance on various pay practices, specifically relating to calculating overtime pay as part of nondiscretionary bonuses, exemptions for paralegals, and rounding practices for calculating hours worked. Continue Reading

The A-Z of when you ought to know about disability (UK)

I gave a talk last week on constructive knowledge of disability, i.e. the point where the employer didn’t actually know its employee was disabled, but is nonetheless held liable because on the facts it ought to have done.

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Employers Prepare: New York Continues to Revamp Workplace Harassment Law (US)

Riding on the 2018 wave of workplace sexual harassment legislation, on June 19, 2019, the New York state assembly and senate voted to toughen the state’s anti-discrimination and anti-harassment law (S. 6577/A. 8421 and related amendment S. 6594/A. 8424). Governor Cuomo, a proponent of the bill, is expected to sign the bill into law.   Continue Reading

California Passes CROWN Act, Becomes First State to Ban Natural Hairstyle Discrimination (US)

On April 30, 2019, we reported that the California State Senate had taken steps toward enacting the CROWN Act (Creating a Respectful and Open Workplace for Natural Hair) to prohibit discrimination on the basis of “traits historically associated with one’s race, such as hair texture and protective hairstyles.” The bill passed the Assembly on June 27, 2019 and, on Wednesday, July 3, 2019, California Governor Gavin Newsom signed the bill into law, making California the first state to expressly include natural hairstyles in its anti-discrimination law. Continue Reading

Illinois Legalizes Recreational Marijuana – Cutting Through The Haze To Understand The Workplace Implications (US)

On June 25, 2019, Illinois governor J.B. Pritzker signed HB 1438, the Illinois Cannabis Regulation and Taxation Act (“CRTA”), which, as of January 1, 2020, legalizes recreational use and possession of marijuana by adults aged 21 or older.  Illinois is now the eleventh US state to adopt a general law authorizing adult recreational use of marijuana (joining Alaska, California, Colorado, Maine, Michigan, Massachusetts, Oregon, Nevada, Vermont, and Washington, plus the District of Columbia).  And thirty-three states have enacted medical marijuana laws.  (We have posted about these and other marijuana-related developments impacting the workplace, for example, here, here, and here.)  What makes Illinois’ new law unique among these other states’ laws is its breadth.  For example, the CRTA addresses and attempts to create remedies for social inequities created through past enforcement of drug-related laws by authorizing the expungement of criminal convictions based on possession of less than 30 grams of marijuana.  It also directs that certain taxes from marijuana sales go to the creation of social programs and business incentives supporting those most adversely affected by drug law enforcement activities.   Continue Reading