Employment & The Law - Spring 2011
Is the Customer Always Right?: The Hidden Danger of Always Giving Your Customers What They Ask For
Imagine that an airline, in an effort to increase lagging profits and market share, conducts market research to determine what its customers prefer. Beyond the normal requests for better food and more on-time flights, one preference
is the most prevalent: customers prefer female flight attendants. How should the airline proceed in light of this information? Should it fire its male flight attendants and replace them with females? Should it retain its current
male flight attendants, but hire only female flight attendants going forward? If the airline chooses either of these two courses, its decision to honor customers’ preferences will risk serious liability under federal non-discrimination
laws.
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What You Know Could Hurt You: The ADA’s Limitations on Pre-Employment Medical Inquiries
If you are involved in your company’s hiring process, you probably already know that the Americans with Disabilities Act (ADA) prohibits you from asking job applicants about their disabilities. You may also know that there are
numerous questions that employers are allowed to ask applicants about their ability to perform job functions. But you may be unsure about how far you can go with these questions, so
you avoid asking an applicant anything that could possibly lead to an answer relating to a medical condition. This article addresses the types of questions that you can (and cannot) ask a job applicant under the ADA.
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NLRB Expands Notice-posting Requirements: Remedial Notices Must Be Posted Electronically
For nearly seventy years, where the National Labor Relations Board (Board) has determined that an employer violated labor law, it has routinely ordered the employer to post a written “remedial notice” at the work site.
The remedial notice was required to be posted in “conspicuous places” at the employer’s work site, meaning locations where the postings were likely to be viewed by employees. Long before the existence of the
Internet and telecommuting, these places included company bulletin boards, time clocks, and department entrances. However, on October 22, 2010, in the case of J & R Flooring Inc. d/b/a J. Picini Flooring,
356 NLRB No. 9, the Board held that, in today’s age of electronic communications, employers must to do more than merely post notices on bulletin boards.
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High Unemployment Leads to Record-Breaking Claims of Discrimination
The EEOC has reported a record number of workplace discrimination claims filed in 2010. According to the EEOC, employees filed 99,922 discrimination claims against private employers and state and local governments in the 2010 fiscal
year ending September 30, which represents a 7% increase compared to the 93,277 claims filed in 2009. The EEOC has also announced that, for the first time since it opened in 1965, retaliation claims surpassed race discrimination
claims as the most frequently filed allegation.
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Sea Change: A Very Different Congress Sets Its Labor and Employment Law Agenda, While the President Explores Regulatory Options
Following the midterm elections, many pundits predicted that Congress would overlook labor and employment legislation in the lame duck session, and that the Democratic legislative agenda would screech to a halt in the 112th Congress.
As to the first, the pundits were right – the lame duck session achieved a repeal of Don’t Ask, Don’t Tell and renewal of the Bush tax cuts, but employment issues fell by the wayside. As to the second, the GOP
hit the ground running. On January 5, 2011, the very first day of the Congressional session, Republican representatives introduced a flurry of employment-related legislation, and Democratic representatives were not far behind.
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