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Hiring in the New Year? Considerations for Employment Testing and Screening

sbyers.jpgAs the economy continues to grow and employers add to their workforce, many employers may find it useful to use pre-employment testing and/or various screening methods in making hiring decisions. Pre-employment testing and screening can come in many different forms and at any stage of the hiring process. Some of the more popular tests and screening procedures include personality or cognitive testing, physical ability tests, credit checks, and criminal background checks. While testing and screening can be an effective way to hire the best candidate from a highly saturated workforce, it is important to make sure such methods do not run afoul of federal and/or state laws.

Employment At-Will Policies That Do Not Clarify Their Scope Or Limitations Risk Violating Federal Law Prohibiting The Exercise Of The Right To Organize And Bargain Collectively

lu_hwe_logo.jpgMany employers maintain policies in their employee handbooks reinforcing employees' at-will status. However, such policies should be carefully crafted to ensure that an employee's federally protected rights to organize and bargain collectively are not infringed. Where an at-will policy merely limits the authority of the company's representatives to alter employment at-will status, but does not preclude employees from seeking such an alteration or from organizing or attempting to bargain collectively, the policy does not run afoul of federal labor law.

November 2012 Volume XI No. 9 Taking Care of Business About Us Comments Unsubscribe Disclaimer Employment At-Will Policies That Do Not Clarify Their Scope Or Limitations Risk Violating Federal Law Prohibiting The Exercise Of The Right To Organize And Ba

kkerr.jpgThe Supreme Court recently heard oral argument on a case which is expected to address a split in the Circuit courts of appeal over how to define a supervisor in cases of alleged workplace harassment. In Vance v. Ball State University, the Seventh Circuit adopted a definition of supervisor as a person who has authority to hire, fire, demote or discipline an employee. This made three Circuits which have adopted this definition. Three other Circuits have adopted a definition which defines a supervisor as a person with day-to-day oversight over the harassed employee which is similar to the standard proposed by the Equal Employment Opportunity Commission.

Recent Cases under the ADA

jjorgensen.jpgWe are going to see more and more claims brought under the Americans With Disabilities Act ("ADA"). Three (3) recent cases highlight the type of issues employers may increasingly encounter.

The Challenge of Accommodating Intermittent FMLA Leave

lu_hwe_logo.jpgThe Family and Medical Leave Act, 29 U.S.C. § 2601 ("FMLA"), became law during President Bill Clinton's first term as president, on August 5, 1993. While the law has been in effect for nearly twenty years, it remains a significant challenge for many employers to permit intermittent medical leave in accordance with the FMLA while still precluding employees from abusing leave under this federal law.

September 2012 Volume XI No. 7 Taking Care of Business About Us Comments Unsubscribe Disclaimer 7th Circuit Reverses Opinion on Reassignment of Disabled Employees Until recently, the precedent in the Seventh Circuit Court of Appeals did not require emp

jjaskowiak.jpgConcerted activity for the purpose of collective bargaining or other mutual aid and protection, a protected right of both union and non-union employees under the National Labor Relations Act, encompasses many activities that, at first blush, may not be easily identified as protected by federal law. Even the simplest of activities, such as a discussion between a single employee and supervisor concerning wages, benefits or other terms of employment may constitute a protected concerted activity if undertaken for the mutual aid or protection of employees. Employers should exercise caution in prohibiting certain activities, or imposing discipline responsive to them, in order to avoid running afoul of Federal law.

7th Circuit Reverses Opinion on Reassignment of Disabled Employees

lu_hwe_logo.jpgUntil recently, the precedent in the Seventh Circuit Court of Appeals did not require employers to automatically reassign disabled employees to vacant positions for which they were qualified, especially if there was a better qualified applicant for the position. In September 2012, the Seventh Circuit reversed course to conform to an earlier Supreme Court holding, and changed its interpretation of the Americans with Disabilities Act to require reassignment of a disabled employee to a vacant position if such reassignment is ordinarily reasonable under the circumstances and would not create an undue hardship for the employer.

NLRB Limits Employer's Investigations

jjorgensen.jpgThe National Labor Relations Board (NLRB) has held that an employer's efforts to protect the integrity of its internal investigations by instructing employees involved in the investigations not to discuss the matter with co-workers violates the National Labor Relations Act (NLRA).

Construction Company Required To Contribute To Funds For All Hours Worked--Not Just Bargaining Unit Work

kpeil.jpgOn July 23, 2012, the Seventh Circuit, in McCleskey v. DLF Construction, Inc., agreed with the United States District Court for the Southern District of Indiana that a construction company, DLF Construction, Inc., ("DLF") was required to contribute to two funds for all work performed by members of the Local 692 of the Cement Masons Union ("Union"), including non-bargaining unit work.

Gender Identity Discrimination is Sexual Discrimination

lu_hwe_logo.jpgThe U.S. Equal Employment Opportunity Commission ("EEOC") recently held a transgender individual may state a case for sex discrimination under Title VII of the Civil Rights Act of 1964 in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012). Although the EEOC failed to make a determination on the merits of whether sexual discrimination occurred, it did hold discrimination based on an individual's gender identity, change of sex, and/or transgender status was a form of sexual discrimination prohibited under Title VII and remanded the matter for further adjudication.

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