Week In Review

July 13, 2015

Preliminary injunction blocking revised definition of “spouse” under FMLA is dissolved
In February 2015, the DOL promulgated a final rule amending the Wage and Hour Division’s regulations to define “spouse” so that an eligible employee in a legal same-sex marriage may take FMLA leave for his or her spouse. In March 2015, a federal district court in Texas issued a preliminary injunction staying implementation of the final rule in light of the U.S. Supreme Court’s then-pending resolution of the same-sex marriage question. In the wake of the U.S. Supreme Court’s ruling that same-sex couples may not be denied the right to marry, a federal district court in Texas has dissolved the preliminary injunction it entered earlier this year to block the DOL from implementing its revised definition of “spouse” under the FMLA to include same-sex spouses. The final rule is now in effect.

Ban-the-box measure enacted in Oregon
Effective January 1, 2016, employers in Oregon will be prohibited from asking job applicants to disclose criminal convictions on job applications. The legislation also makes it an unlawful employment practice for employers to exclude job applicants from an initial interview solely due to a past criminal conviction. These disclosure prohibitions, however, do not prevent employers from considering criminal conviction history when making hiring decisions. The prohibitions against requiring disclosure of criminal convictions expressly do not apply where:
• Federal, state, or local law, including corresponding rules and regulations, require consideration of a job applicant’s criminal history;
• The employer is a law enforcement agency; or
• The employer is part of the criminal justice system.

Grocery store chain cited more than $180,000 for wage theft violations
El Super grocery store chain has been cited for multiple wage theft violations, with assessments and penalties totaling $180,668. Investigators gathered evidence using payroll records audits and worker interviews. The evidence indicated rest and meal period violations as well as overtime premiums owed. Some employees worked an average of 55 hours per week but were paid for only 40 hours without overtime. Workers were forced to clock out for meal breaks but ordered to return to work without taking their full meal period. In some cases, workers were not allowed to take rest breaks.

Retailer allegedly failed to accommodate worker with bone cancer
The EEOC has filed a lawsuit asserting that a mega-retailer violated the ADA by refusing to provide reasonable accommodations to an employee who was disabled by bone cancer. Employer initially agreed to comply with the employee’s request that the company provide a chair in her work area in the fitting room and limit her scheduled work hours because treatment for bone cancer in her leg limited her ability to walk and stand. After complying with the employee’s scheduling accommodation for many months, the store purportedly revoked it for no reason. Employer also did not ensure that a chair was in the employee’s work area, at one point telling her that she had to haul a chair from the furniture department every day, which was of course hard for her to do given her disability. Employer later transferred the employee from the fitting room to a greeter position, which did not comply with her restrictions on standing.