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Employer Not Required to Provide ADA Accommodation of Choice to Employee >
July 10, 2019
The Legal Intelligencer
By: Sidney R. Steinberg
While the Americans with Disabilities Act requires that an employer provide a disabled employee a “reasonable accommodation,” it is important to keep in mind that an accommodation need only be “reasonable” and need not be the one preferred by the employee in question. This is the principal message of the recent decision in Keyhani v. The Trustees of the University of Pennsylvania.

Recent NLRB Decision Reminds Employers of the Need for Consistency >
June 12, 2019
The Legal Intelligencer
Employers must be both credible and consistent in their explanation for employment decisions. One without the other is helpful, but both are necessary for an employer to prevail. While we see this issue raised most often in the context of summary judgment or trial decisions in court, a recent decision of the National Labor Relations Board reinforces the point.

The Yates Memo Is Here to Stay: Signs of Increasing Efforts to Hold Individuals Criminally Liable for Corporate Wrongdoing >
June 4, 2019
Business Crimes Bulletin
By: Carolyn H. Kendall and Yune D. Emeritz
It is axiomatic that companies cannot do wrong without the actions of individuals. However, the trend over the past few decades, with a few exceptions, has been that individuals generally were not prosecuted for their roles in corporate wrongdoing that harmed the public welfare. In response, the Department of Justice (DOJ) announced policies designed to obtain information from companies about culpable insiders in order to facilitate prosecutions of those responsible for corporate malfeasance.

The Viability of Freestanding Claims for Failure to Accommodate Disabilities Remains Unsettled >
May 14, 2019
New Jersey Labor & Employment Law
By: Kayleen Egan and Benjamin S. Teris
Is an employer's failure to accommodate an employee's disability, in and of itself, sufficient to form an actionable claim? This question remains unresolved, and courts are divided on whether a plaintiff can pursue a “freestanding failure to accommodate claim.”

Three-Year Delay Not Sufficient for Dismissal for Failure to Prosecute >
May 8, 2019
The Legal Intelligencer
By: Sidney R. Steinberg
How long is too long for a plaintiff to let her case sit before it can be dismissed for failure to prosecute? One year? Two years? Three? according to the U.S. Court of appeals for the Third Circuit in Hildebrand v. Allegheny County, even three years of dormancy may not warrant dismissal of a potentially meritorious claim if there is no evidence that the plaintiff caused the delay or acted in bad faith.

FMLA Harassment Not Actionable Without Missed Leave >
April 11, 2019
The Legal Intelligencer
By: Sidney R. Steinberg
It is undoubtedly a bad idea for a manager to harass an employee each time she takes leave under the Family and Medical Leave Act (FMLA). But if the employee takes leave each time necessary, such alleged harassment, even if it is perceived a discouraging additional leave, is not illegal.

U.S. Department of Labor Proposes New Overtime Rule...Again >
March 22, 2019
The Legal Intelligencer
By: Andrea M. Kirshenbaum and Kayleen Egan
After much anticipation, on March 7, the U.S. Department of Labor (DOL) issued its notice of proposed rulemaking, proposing to update, among other things, the Fair Labor Standards Act's (FLSA) salary level for the executive, administrative, professional, outside sales and computer exempt employees from $455 to $679 per week.

‘Self-Prescribed' Medical Marijuana Leads to Employee's Termination >
February 6, 2019
The Legal Intelligencer
By: Sidney R. Steinberg
The employment law implications of medical marijuana are rapidly evolving. A recent court decision addresses an employee's self-diagnosed use of "medical" marijuana along with a number of other practical ADA and FMLA issues.

Does The Continuing Violations Doctrine Apply To Title IX? >
January 25, 2019
Law360
By: Kayleen Egan
In Keel v. Delaware State University, the U.S. District Court for the District of Delaware issued a report and recommendation to grant a university's motion to dismiss a Title IX claim based on the statute of limitations. Although the court ultimately declined to rule on the issue, Keel raised an important question that has remained undecided in the Third Circuit - whether the continuing violations doctrine applies to Title IX claims.

Explicitly Excluding Evidence of Implicit Bias in Employment Cases >
January 22, 2019
DRI's For the Defense
By: Sidney R. Steinberg and Benjamin S. Teris
Implicit bias as an issue is not going away. Employment litigators disregard implicit bias evidence at their own and their clients' peril.

Delayed Discipline in Employee Misconduct Results in Denial of Summary Judgment >
January 9, 2019
By: Sidney R. Steinberg
Employers are often faced with a conundrum after learning of employee misconduct. Summarily terminating an employee may appear harsh and may, in fact, lead to an unfair result. However, the longer an employer waits to take disciplinary action, the more opportunity there is for an employee to create (or, at a minimum, highlight) potential issues of fact that may undermine ultimate discipline. Such appears to be the case in the recent decision of Worthington v. Chester Downs & Marina.

Hospital Successfully Defends Termination After Nurse Returns From Opioid Abuse Treatment >
December 12, 2018
The Legal Intelligencer
By: Sidney R. Steinberg
While current drug use is not protected under the Americans with Disabilities Act, drug addiction is. Employers often struggle with the legal obligations associated with drug use and distinguishing between current use and past addiction.

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