The Right of Employees to Share Compensation Information
The National Labor Relations Board (NLRB) recently confirmed that, although it has become more employer-friendly under the current administration, its position about employees having the right to discuss their “terms and conditions of employment” with one another, including their pay rate and benefits, has not changed. These rights apply to both unionized and nonunionized employees.
Earlier this month, the board held that an employer’s rule prohibiting employees from disclosing “wage and salary information” to one another violates the National Labor Relations Act.
Overtime Rules
You may remember that during the Obama administration, the Department of Labor had announced a new overtime rule, but that rule was declared invalid by a federal court. The Trump administration chose to issue a revised rule rather than pursue appeals.
The Obama-era rule more than doubled the required salary for federal “white collar” exemptions from $23,660 to $47,476. The new rule is expected to set the required salary somewhere in the low-to-mid-$30,000 range.
Employee Obligations under the ADA
The Americans with Disabilities Act (“ADA”) and similar state laws require employers to provide employees with reasonable accommodations for their disabilities, but three recent court decisions make it clear that employees have obligations as well.
The Eleventh Circuit considered a case in which the employer had fired the plaintiff because it believed she had reported to work under the influence of undisclosed prescription drugs, which violated the employer’s drug policy.
The Ninth Circuit decided a case with similar facts brought by an employee who was fired after failing a drug test.
Both plaintiffs claimed, among other things, that their former employers had failed to reasonably accommodate their disabilities.
Unfortunately for the plaintiffs, neither of them had ever requested an accommodation, and, both courts held that an employer is not obligated to provide any accommodation unless the employee requests accommodation or unless the need for an accommodation is obvious (for example, the employee is missing a limb).
A Sixth Circuit case decided late last year was brought by a UPS driver who had injured her back unloading heavy packages. The job description for the driver position, as well as her alternative position of sorter, required lifting of packages weighing up to 70 pounds.
The employee provided her employer with two notes from her doctor issuing permanent work restrictions: no lifting of more than 30 pounds, no pulling of more than 30.5 pounds, and no driving.
The employee’s supervisor refused to allow her to return to work because her position required lifting over 30 pounds. In response, the employee asked to work in a “local sort” position involving packages weighing 10 pounds or less. The supervisor refused the request and the employee filed a grievance.
UPS set up a meeting with the employee to discuss potential accommodations, but she said that she wanted to discontinue the ADA interactive process and that she would ask her doctor to lift her work restrictions.
Although she quickly returned to work with no restrictions, she sued UPS several months later, and one of her claims was that UPS had failed to accommodate her disability.
The court held that the ADA does not require employers to make “on-the-spot accommodations of the employee’s choosing,” so the initial refusal to assign the employee to the local sort position was not discriminatory.
Instead, said the court, an employer must engage in an “informal, interactive process” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.'”
The appellate court then held that, because the plaintiff did not participate in the process in good faith, and had actually abandoned the process, her claim was properly dismissed by the district court.
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Please feel free to contact us if you have any questions about your rights and obligations, either as an employee or as an employer.
Photo by Limor Zellermayer on Unsplash
