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E&U Law Blog

Are ADA Interference Claims on the Verge of Becoming Mainstream in Employment Cases?

Attorneys litigating claims pursuant to the Americans with Disabilities Act ("ADA") usually focus on failures by an employer to accommodate a disability, their failures to engage in an interactive process related to an accommodation request, or retaliation. A recent decision by the U.S. Court of Appeals for the Seventh Circuit in Frakes v. Peoria School District No. 150, 872 F.3d 545 (7th Cir. Sept. 26, 2017), however, clearly articulated the elements to prove for an ADA interference claim. The ADA contains prohibitions against both retaliation (42 U.S.C. § 12203(a)) and interference (42 U.S.C. § 12203(b)). This distinguishes the ADA from most other EEO laws, which only prohibit retaliation, but do not reference interference in any manner.

Sex Harassment in the News and Employer's Obligations

Sex harassment has filled the news media for several weeks with accounts of misdeeds of Hollywood producers, actors, congressmen, senate candidates, media personalities and, close to our home, the resignations of legislative members and the apologies of Senator Franken.

The Downsizing Generation: How to Handle a Surplus of Stuff When a Loved One Ages

As the baby boomer generation ages-and downsizes-more and more adult children will be tasked with going through their loved one's belongings to decide what to do with everything. As more and more people downsize after retirement, china sets, furniture, heirlooms, and other belongings are often left behind and unwanted. 

Are Professional Football Players Protests Protected by Minnesota State or Federal Law?

With President Trump's announcement to fire the "SOBs" who kneel in disrespect to the flag and national anthem, the whole NFL protest has been the subject of discussion in our office. This brought up the question of whether firing the "SOBs" would be permissible, or retaliation under some law.

EMPLOYERS BEWARE: 5th Circuit Court of Appeals Finds Workplace Recording Policy is Unlawful

The Fifth Circuit Court of Appeals recently became the second federal appeals court to hold an employer's policy prohibiting photographing and recording in the workplace violates the National Labor Relations Act ("NLRA"). The Court held unlawful the employer's policy that prohibited all "photography and audio or video recording in the workplace" without prior permission from a manager, human resources, or the employer's legal department. (T-Mobile USA, Inc. v. National Labor Relations Board).1

Google - An Opportunity Lost

Google found itself in the middle of a situation regarding diversity and free speech this month. The basic facts are this-a tech employee, on a Google sponsored message board, wrote a ten page "manifesto" offering "biological" reasons for the abundance of males in Google's tech area, potential solutions for remedying this disparity and challenging Google's diversity activities as discriminatory, among other things. Somehow the document was leaked outside Google and, on the progressive side, the manifesto was met with outrage for its alleged biases and stereotypes. On the alt-right side, it was welcomed as a reasoned assault on rampant political correctness. I encourage readers to look at the manifesto yourself and make your own conclusions. Having done so, I don't see the author as malicious or evil or a right wing zealot. Either way, Google found itself on the horns of a dilemma. On one hand it values the free expression of ideas without fear or shame. On the other, it values its commitment against bias and to promote diversity in the workplace. What it ended up doing was to fire the author. Now the author, James Damore, has become a pariah to the left, and a sacrifice to the altar of political correctness to the right. After reading the statement of the CEO, I thought of 1984 by George Orwell. Google says it "strongly " supports the right of employees to express themselves, even with unpopular ideas, yet the message remains, if they do so, they violate the Code of Conduct. See statement of Google CEO here. https://www.blog.google/topics/diversity/note-employees-ceo-sundar-pichai/ Google has only itself to blame for the division that has exploded within its workforce, its users, and the internet because of this event. It has demonstrated it has a no tolerance policy regarding diversity-diversity of thought that is.

The Trump Administration Appears Primed to Aggressively Enforce the False Claims Act and to Target Lending Institutions

Even though President Trump and his Administration have not made any official pronouncements regarding enforcement of the False Claims Act ("FCA"), it would appear that the current U.S. Department of Justice will not be a taking a less aggressive approach to its handling of FCA cases than it previously did under the Obama Administration. In fact, both U.S. Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein testified in connection with their confirmations that they believed the FCA was a useful tool in combating government fraud. Attorney General Sessions testified in a January 10, 2017 Senate Judiciary Committee Hearing that, "if I am confirmed, I will make it a high priority of the department to root out and prosecute fraud in federal programs and to recover any monies lost due to fraud or false claims." Similarly, Deputy Attorney General Rosenstein affirmed under oath during a March 7, 2017 Senate Judiciary Committee Hearing that he would vigorously enforce the FCA to recover taxpayer dollars.

Friedlander clarifies Minnesota Whistleblower Law

The Minnesota Supreme Court, on August 9, 2017, answered a question that has plagued Minnesota employment lawyers for four years. Prior to August 9, 2017, an employee seeking to "blow the whistle" on the employer's practices arguably had to demonstrate, as part of the employee's "good faith" report, that the employee made the report for the "purpose of exposing an illegality." I say arguably, because in 2013, the Minnesota Legislature had ostensibly removed this obligation when it codified a definition of "good faith" in the Minnesota Whistleblower Act. Despite this 2013 amendment, which most practitioners recognized significantly broadened the law in favor of whistleblowers, some courts stubbornly continued to apply the former court-created definition of "good faith." In Friedlander v. Edwards Life Sciences, LLC, the Minnesota Supreme Court finally put that issue to rest by officially holding that the "purpose of exposing an illegality" is no longer a part of an employee's burden of proof.

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