Tag Archives: Maxine Adams

ILN Today Post

A Look Back on Wage and Hour Developments in 2018: Blockbuster Cases, FLSA Amendments, and More

Arguably, the very first workplace regulation, dating back thousands of years, was one involving wage and hour issues—the mandatory day of rest. While much has changed over the great many years since then, the centrality of work in our economy, and indeed our daily lives, has not. Today, more than ever, understanding and adhering to the rules governing workers’ hours and pay is a key responsibility of every employer.

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Illinois Experiences Surge of Lawsuits Regarding Biometric Information Privacy

Employers continue to incorporate the use of biometric information for several employee management purposes, such as in systems managing time keeping and security access that use fingerprints, handprints, or facial scans.  Recently, Illinois state courts have encountered a substantial increase in the amount of privacy class action complaints under the Illinois Biometric Information Privacy Act (“BIPA”), which requires employers to provide written notice and obtain consent from employees (as well as customers) prior to collecting and storing any biometric data.  Under the BIPA, the employer must also maintain a written policy identifying the “specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used.”  740 ILC 14/15(b)(2).

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Take 5 Newsletter: No Tricks, We Treat You to Five Developments in the Intersection of Health Care and Employment Law

Almost ten months into the Trump Administration, the executive and legislative branches have been preoccupied with attempting to repeal and replace the Affordable Care Act (“ACA”) – but each attempt has thus far proved fruitless.  While the debate rages over the continued viability of the ACA, as we stated in our previous Take 5, employers should remember that obligations to comply with Section 1557 (the non-discrimination provision of the ACA) and the final rule implementing that provision remain.  But there have been developments regarding which characteristics are protected by Section 1557.  In this Take 5, we explore whether Section 1557 continues to cover gender identity and transition services.

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Seventh Circuit Breaks from the Pack in Holding That Long-Term Leave Is Not a Reasonable Accommodation Under the ADA

In a decision that will be celebrated by employers in the Seventh Circuit struggling with employee requests for post-Family Medical Leave Act (“FMLA”) leave as an accommodation under the American with Disabilities Act (“ADA”), the Seventh Circuit in Severson v. Heartland Woodcraft, Inc., 2017 U.S. App. LEXIS 18197 (7th Cir. Sept. 20, 2017), recently held that an employer did not violate the ADA by firing an employee instead of extending his leave after he exhausted all leave under the FMLA.  This holding – finding that extended long-term leave is not a reasonable accommodation under the ADA – is not only contrary to the Equal Employment Opportunity Commission (“EEOC”)’s position regarding extended leave as a reasonable accommodation, but also conflicts with several other federal Circuit courts that had previously ruled on the same issue (holding that extended/post-FMLA leave can be a reasonable accommodation under the ADA).

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Second Circuit Adopts “Motivating Factor” Causation Standard for FMLA Retaliation Claims

The U.S. Court of Appeals for the Second Circuit recently clarified that the “motivating factor” standard of causation applies to Family and Medical Leave Act (FMLA) retaliation claims, instead of the “but for” causation standard applied in Title VII and ADEA retaliation cases. The “but for” standard is more onerous for the plaintiff, who must demonstrate that discrimination or retaliation was the determining factor for the adverse employment action, not just one reason among others. The less burdensome “motivating factor” causation standard requires the plaintiff to show only that the action was motivated at least in part by discriminatory or retaliatory animus.  In Woods v. START Treatment & Recovery Ctrs., Inc., the Second Circuit vacated and remanded the jury verdict where the district court incorrectly instructed the jury to apply the “but for” causation standard to Plaintiff’s FMLA retaliation claims.  Specifically, the court held that the “motivating factor” standard applies to FMLA retaliation claims actionable under 29 U.S.C. § 2615(a)(1), which prohibits “any employer to interfere with, retrain, or deny the exercise of or the attempt to exercise” rights under the FMLA.

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Accessible Medical Diagnostic Equipment Update: The U.S. Department of Veteran Affairs Will Adopt the Proposed New Standards

Earlier this month, the U.S. Access Board announced that the U.S. Department of Veteran Affairs (“VA”) will adopt the new Accessibility Standards for Medical Diagnostic Equipment.

As mentioned in our January 31, 2017, blog post, “The U.S. Access-Board Releases Long-Awaited Final Accessible Medical Diagnostic Equipment Standards,” the Access Board released its new Accessibility Standards for Medical Diagnostic Equipment (the “MDE Standards”) at the beginning of the year, with an effective date of February 8, 2017.

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Texas District Court Upholds Hospital’s Policy that Disabled Employees Compete for Vacant Positions

Dallas, TexasIn a decision impacting the interactive process, the Northern District of Texas held in EEOC v. Methodist Hospitals of Dallas, No. 3:2015-cv-03104 (N.D. Tex. Mar. 9, 2017), that employers do not violate the Americans with Disabilities Act (“ADA”) by requiring individuals with disabilities that need reassignment as a reasonable accommodation to compete for vacant positions.

Plaintiff, a former patient care technician, requested an accommodation after an on-the-job injury precluded her from performing the required duties of lifting and transporting patients. Though she met the minimum qualifications for two vacant positions, she was not chosen for the positions and was terminated. The EEOC alleged that the Hospital maintained an unlawful policy by requiring individuals with disabilities to compete for vacant positions where the individual was qualified for the position. The Hospital argued that the EEOC was attempting to mandate additional affirmative action not required by the ADA by asserting that the employer could not choose the most qualified applicant for a vacant position.

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