Minn. App. Unpub. LEXIS 104

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  sexual orientation (= heterosexuality, homosexuality or bisexuality – either actual or perceived), and
  
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  gender identity (= person's self-perception or perception by others as identity as male/female based on appearance, behavior or physical characteristics either in accord with or opposed to physical anatomy, chromosomal sex, or birth sex).
  

these URL links for recent developments in this area of the law as of May 2012: http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt; article - http://www.constangy.com/communications-401.html.

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  ADA regulations define a “direct threat” as “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated by reasonable accommodation.”
  
  • 
    Evidence of a “direct threat” must be based on “a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”
    
  • 
    Whether an individual poses a direct threat includes consideration of the factors:
    
    • 
      duration of the risk,
      
    • 
      the nature and severity of the potential harm,
      
    • 
      the likelihood that the potential harm will occur, and
      
    • 
      how imminent is the potential harm?
      
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  Accommodations requested must be reasonable and not unduly burdensome to the employer.
  

This case illustrates the value of a knowledgeable company engaged in good business practices in handling this kind of situation, and that courts recognize those efforts to do the right thing both for the individual employee under the anti-discrimination laws and for the other employees under the safe workplace laws.

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  In 2003 he began complaining of chest pains.
  
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  In 2007 he was diagnosed with Prinzmetal’s angina, a condition of coronary artery spasms causing chest tightness, shortness of breath, dizziness, and fatigue.
  
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  Medically cleared to return to his job as a forklift driver, he began having angina spasms at work in March 2008.
  
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  As of February 2009 he had experienced at least eleven spasm incidents at work.
  
  • 
    Most of them required treatment at the plant’s emergency room.
    
  • 
    According to court records, during one incident he was found doubled-over and “ready to pass out.”
    

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  At the time of his first heart spasm, the plant physician expressed concerns for his safety and others if he ever became incapacitated while operating machinery.
  
  • 
    He had a clean driving record and assurances from his cardiologists that he posed no greater threat of sudden incapacitation than any other angina patient,
    
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    But the plant physician prohibited him from driving a forklift, and he was subsequently reassigned to a temporary position in the plant’s unit of gatekeepers and tollkeepers.
    
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  In October 2008 he accepted a permanent job in the paint department, which required rotating through a series of tasks, one of which was working with or around a “low-hanging” overhead conveyor line.
  
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  Another angina spasm attack resulted in the plant physician referring him for an independent medical examination, which was performed in November 2008.
  
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  Court records show that he had not been fully truthful either with his cardiologists or with the independent medical examiner about the extent of his condition.
  
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  He was permitted to return to the paint department in December 2008, and in January 2009 he experienced three angina spasms at work. Based on these incidents, information from the plant physician, and the fact that Wurzel worked around heavy machinery and occasionally was out of the sight of other employees, the independent medical examiner reversed his opinion and concluded that he should not be permitted to work either alone or near moving machinery.
  
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  He took sick leave.
  
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  In August 2009 the company conducted a “restriction review” to evaluate the situation of his job in the paint department, and it concluded he was not qualified for it because he could not work alone or near moving machinery, both of which were essential requirements of the job. Based on this, he was told he could bid on any other job in the plant that conformed with his work restrictions.
  
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  He remained on leave, during which he used up twenty-six 26 weeks of paid leave and then took unpaid leave. He eventually returned to work in March 2010, claiming he had been spasm-free for the previous six months.
  

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  The employer’s plant has 2,500 employees and six operating assembly lines, all of which use moving machinery in a workplace that requires extreme care:
  
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    Workers operate presses, drills, cutting machinery, and numerous vehicles (including forklifts).
    
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    Forklifts and pedestrians travel the plant’s shared space, with only painted lines to separate them.
    
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  Wurzel acknowledged in his deposition that there was no way of knowing when his medical condition might flare up, whether it would cause an artery spasm, or how long it would last.
  
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  Thus, the appellate court concluded:
  
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    The employer had utilized the most current medical knowledge to reach a reasonable medical judgment that he posed a direct threat to workplace safety.
    
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    His claim was based on “being regarded as disabled”, so under the ADA the employer was not required reasonably accommodate him, but the appellate court nonetheless concluded that the employer had engaged in a non-discriminatory process to determine the threat posed and, based on the best data available, had made an objective decision regarding his job-related abilities.
    

NLRA: deposition questions concerning employees' union activity, NLRA Section 8(a)(1) violations, conflict with Federal Rules of Civil Procedure (FRCP) scope of discovery rules

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  side work they had to perform,
  
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  tip-sharing with their manager, and
  
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  having to pay for their transportation to work each day,
  

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  whether they were members of the union;
  
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  when they became members of the union;
  
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  whether each of the other plaintiffs were union members;
  
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  whether they spoke to other union members about the litigation;
  
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  whether they attended union protests on a weekly basis; and
  
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  whether they had any agreements with the union related to the outcome of the litigation.
  

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  Guess? required a three-part test to determine if deposition questions are unlawful
  

1. 
   whether the questions are relevant to the underlying litigation;
   
2. 
   if relevant, whether the questions have an illegal objective; and
   
3. 
   if relevant and without an illegal objective, whether the employer’s interest in obtaining the information outweighs the employees’ confidentiality interests under Section 7 of the Act.
   

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  Century Restaurant and Buffet required of employers that even when they voluntarily recognize a union they may violate the NLRA by asking employees about their union activity directly or indirectly via counsel through otherwise permissible questions in a separate legal proceeding.
  

“Stigma-plus claim”: government employee accused of improper conduct by juvenile patient, independent law enforcement investigation concluded no basis for charges, access to state database, lack of evidence of false statement against employee

1. 
   that the government made a statement about him or her,
   
2. 
   that is sufficiently derogatory to injure his or her reputation,
   
3. 
   that is capable of being proved false, and
   
4. 
   that he or she asserts is false.
   

2. 
   
   
3. 
   Background
   
   1. 
      Criminal History Records
      
   2. 
      Employers’ Use of Criminal History Information
      
   3. 
      The EEOC’s Interest in Employers’ Use of Criminal Records in Employment Screening
      
4. 
   Disparate Treatment Discrimination and Criminal Records
   
5. 
   Disparate Impact Discrimination and Criminal Records
   
   1. 
      Determining Disparate Impact of Policies or Practices that Screen Individuals Based on Records of Criminal Conduct
      
      1. 
         Identifying the Practice or Policy
         
      2. 
         Determining Disparate Impact
         
   2. 
      Job Related for the Position in Question and Consistent with Business Necessity
      
      1. 
         Generally
         
      2. 
         Arrests
         
      3. 
         Convictions
         
      4. 
         Determining Whether a Criminal Conduct Exclusion Is Job Related and Consistent with Business Necessity
         
      5. 
         Validation
         
      6. 
         Detailed Discussion of the Green Factors and Criminal Conduct Screens
         
         1. 
            The Nature and Gravity of the Offense or Conduct
            
         2. 
            The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence
            
         3. 
            The Nature of the Job Held or Sought
            
      7. 
         Examples of Criminal Conduct Exclusions that Do Not Consider the Green Factors
         
      8. 
         Targeted Exclusions that Are Guided by the Green Factors
         
      9. 
         Individualized Assessment
         
   3. 
      Less Discriminatory Alternatives
      
6. 
   Positions Subject to Federal Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct
   
   1. 
      Hiring in Certain Industries
      
   2. 
      Obtaining Occupational Licenses
      
   3. 
      Waiving or Appealing Federally Imposed Occupational Restrictions
      
   4. 
      Security Clearances
      
   5. 
      Working for the Federal Government
      

1. 
   Positions Subject to State and Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct
   

7. 
   Employer Best Practices
   

FLSA: exempt status, “salary basis”, 29 C.F.R. § 541.118(a)(1973) was amended in 2004 to “salary actually received” rather than “employment agreement”

602. 
     - Salary basis.
     

* * *
(a) General rule. An employee will be considered to be paid on a “salary basis” within the meaning of these regulations if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed