The Older Workers Benefits Protection Act
Part One of this article discussed releases and covenants not to sue, the issues raised by the OWBPA (Older Workers Benefits Protection Act) and EEOC Regulations, and <i>Thomforde v. International Business Machines</i>, 406 F.3d 500 (8th Cir. 2005). The conclusion herein discusses the <i>Syverson</i> case and considerations for employers in preparing releases. <i>Syverson v. International Business Machines</i>, 461 F.3d 1147 (9th Cir. 2006).
The Pregnant Employee in the Hazardous Workplace
It is well settled that the company may not transfer the employee against her wishes to another job or force her to take a leave of absence. This rule was stated clearly by the Supreme Court in <i>International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Johnson Controls, Inc.</i> So what to do?
Business Not As Usual
The majority of employers know that employment discrimination based on gender is illegal. Many employers, however, are unaware that discrimination based on stereotypical views of women as 'mothers' and men as 'fathers' may also be actionable. Although caregivers are not a protected class under federal anti-discrimination statutes, courts are recognizing with increased frequency that inappropriate considerations and decisions about 'caregivers' might constitute unlawful treatment under various federal laws.
Mental Illness and the ADA
A potentially dangerous situation employers struggle to understand arises when an employer neither knows nor recognizes an employee's mental disability, and has cause to terminate that employee, but, prior to termination, discovers the disability. This article discusses the pitfalls and solutions.
Crystal Ball Required?
As experienced Chapter 11 bankruptcy practitioners know, when a company suffers severe financial distress and faces the prospect of imminent bankruptcy, its record-keeping procedures can break down, even if they were previously adequate. To prevent future litigation difficulties from arising in connection with the prosecution of avoidance actions, it is important for a practitioner advising a company heading into or newly in bankruptcy to begin to preserve all electronic data immediately.
Vehicle Tracking Surveillance
In our era of fast-paced technological development, you may know that a GPS-enabled cell phone could allow you to trace your teenager's steps, but did you know that you could track your schnauzer through his GPS-enabled dog collar? Inventive product designers are finding new ways for us to enjoy the government-run Global Positioning System all the time.
The Proposed APA Guidelines for Child Custody Evaluations
The American Psychological Association (APA) has now proposed new guidelines for Child Custody Evaluations to replace those promulgated in 1994, which set 'aspirational goals' for those psychologists engaging in evaluations of children for divorcing families going through custodial litigation. Herein is a critique of the new guidelines from an attorney's point of view.
Older Workers Benefits Protection Act
In order to discourage and, possibly, sanction an employee for bringing a suit, even where he or she has signed a release, employers have historically added to the release agreement a covenant not to sue. That covenant usually includes a promise that the employee will not sue, and that, if the employee does file suit, he or she must pay the employer's defense costs in addition to his or her own attorneys' fees and costs. Recent cases have called into question the viability, utility, and even the lawfulness of covenants not to sue, such that employers may well decide to forego them when drafting releases of age discrimination claims.
D.C. Court Rules Overbroad Workplace Policies Unlawful
In two recent decisions, the District of Columbia United States Court of Appeals has ruled overbroad workplace policies unlawful, even when those policies did not expressly prohibit protected workplace discussions about terms and conditions of employment, and even when there was no evidence that the policies had been enforced to punish protected workplace discussions. This article discusses these decisions, and their implications for employers that have adopted, or are contemplating adoption of, workplace policies that might be deemed overbroad.
Voluntary Versus Mandatory Wellness Programs
Last month, we discussed voluntary and incentive-based wellness programs, which are usually offered to employees on a voluntary basis, with various incentives often added to foster continued participation. We went on to discuss mandatory programs, which a minority of employers provide to encourage employees to get healthier by providing extensive health care services ' but that also require certain conduct, such as giving up alcohol and tobacco. This month, we continue with an in-depth discussion of the risks associated with mandatory programs.
