The Harshbarger Report

Aligning Perception With Practice
One key way of accomplishing this is creating a self-critical environment.

AT THE SUPREME COURT

A Real Quick Turnaround On This Case
It was lawful for a City to fire a police officer for selling sexually explicit videos of himself on the internet.

OTHER EMPLOYMENT LAW HEADLINES

Skiing As Part of Employment?
Employee injured on an employer sponsored ski-trip was not entitled to workers compensation.

Employer Could Bar Facial Piercings
The Employer had a legitimate interest in presenting a workforce to customers that was reasonably professional in appearance.

Indefinite LOA Not A Reasonable Accommodation Under ADA
Although it could be if it “would enable the employee to perform his essential job functions in the near future.”

Court Holds Transfer Of Police Sergeant Not An Adverse Employment Action
Lateral transfer with same pay and benefits, despite claim that the new position was not as “prestigious,” was not sufficient for employee to maintain discrimination claim.

Skin Allergy Caused By Workplace Was Not A Disability
If Plaintiff “could have avoided the itching that seriously affected his sleep simply by working at a different location, then he was not 'substantially limited' in the major life activity of sleeping".

Legislative/Regulatory Actions Of Note

OSHA Issues Reminder Of February 1, 2005 Posting Requirement
Beginning February 1, employers must post a summary of the total number of job-related injuries and illnesses that occurred last year.

Yes, News Of Another Posting Requirement
Veterans Benefits Improvement Act of 2004 requires employers to notify employees of their rights and obligations under USERRA using a notice to be provided by the DOL by March 10, 2005, at which time the posting requirement becomes effective.

Coordinated Group Health Insurance Final Rules Issued By Three Agencies
The Internal Revenue Service (“IRS”), Employee Benefits Security Administration of the Department of Labor (“EBSA”), and the Centers for Medicare & Medicaid Services, Department of Health and Human Services, published final regulations governing portability requirements for group health plans and issuers of health insurance coverage offered in connection with a group health plan.

IRS Issues Revised FUTA Regulations
The Internal Revenue Service Nov. 30 issued final regulations increasing the minimum threshold for Federal Unemployment Tax Act (“FUTA”) deposits.

Mass AG “Advises” Employers Of Employment “Best Practices”
Attorney General issues document entitled “Advisory on the Civil Rights of Immigrant Workers Prohibitions on National Origin, Race and Color Discrimination.”

OSHA Issues Hospital Worker Guidance
Occupational Safety and Health Administration (“OSHA”) releases guide for protecting hospital workers caring for patients injured in incidents involving chemical, biological, or radiological materials.

FLSA/FMLA Cases

No Right to Cure Medical Certification Deficiency When Employee Submitted No Medical Documentation At All
An employee has an obligation to cooperate in seeking FMLA leave.

What The Heck Is The “Worksite” Under The FMLA?
Tenth Circuit rejects DOL “worksite” rule.

Alleged FMLA Retaliation Victim Had To Be “Eligible Employee”
Court rejects employee’s claim that while she might not have been entitled to FMLA leave, she was entitled to protection against retaliation for seeking such leave.

On The Employee Benefits Front

Court Upholds Arbitration As Means Of Dispute Resolution Under ERISA Plan
The moral here is if you want to provide for arbitration in any document, be it a plan or an employment agreement, you have to be prepared to live with the outcome in arbitration, because review of arbitration awards is extremely limited, even in ERISA cases.

On The Public Sector Front

First Circuit Adopts “Course Of Proceedings” Test For Notice Of Punitive Damages Against Individual In §1983 Actions
City employee who “orchestrated” the City’s refusal to comply with a discrimination settlement agreement is on the hook personally for $10,000 in punitive damages.

On The Labor Front

Correction - Calling Your Boss A “bastard red-neck son of a bitch” Is Not Protected Conduct Under The NLRA
Court overturns Board decision holding that calling your supervisor a “racist” and a “bastard red-neck son of a bitch” can be protected conduct under the National Labor Relations Act.

Board Overturned For Refusing To Defer To Arbitration
The Board abused its discretion when it did not defer to a settlement agreement between the employer and the union and pursued litigation instead.

Curiouser And Curiouser
Adverse employment actions flowing from unlawful conduct ordinarily are themselves unlawful, but not in this case.

Employer Ordered To Pay Union’s Organizing Costs
Be very careful what you agree to with a union.

Did You Know . . . ?

That January’s Molecule of the Month is Arsine, an important molecule in the history of forensic science, being a favorite of early 19th century poisoners who easily could obtain it from rat poisons.  Symptoms of arsenic poisoning could be confused with those of cholera.  See Cary Grant in “Arsenic and Old Lace.”

That January’s flower is the Carnation, and its birthstone is the Garnet?

That January is named for Janus, the Roman God of doors and gateways, and is, among other things, Alzheimer’s Awareness Month, National Mentoring Month, Wheat Bread Month, Bread Machine Baking Month, National Hobby Month and National Soup Month?