Tenth Circuit reaffirms Adverse Employment Action element of discrimination claims, including failure-to-accommodate claims under the ADA

The Tenth Circuit reaffirmed that plaintiffs must prove they suffered an Adverse Employment Action in all discrimination claims, including claims alleging a failure to accommodate under the ADA.

(A)n adverse employment action is an element of a failure-to-accommodate claim 
To establish an Adverse Employment Action, the plaintiff must prove more than that she suffered a “a mere inconvenience or an alteration of job responsibilities.” Rather, the Tenth Circuit held she must prove that she suffered harm to “a term, condition, or privilege of employment.”

Positive drug tests continue to rise, and not just for marijuana

With a growing number of states embracing marijuana for assorted reasons (pain relief, cash crop, recreational use), it’s no surprise that U.S. workers in every sector keep failing urine tests. Drug monitor Quest Diagnostics found that everyone has been doing more of everything (cocaine, pot, meth) over the past few years. The results of its latest survey shows double-digit leaps in employee drug use across the board, with notable spikes in “consumer-facing industries, including jobs in retail and health care and social assistance.”
— Read on www.bloomberglaw.com/exp/eyJjdHh0IjoiRExOVyIsImlkIjoiMDAwMDAxNjctY2NkMC1kNzdiLWFmNzctY2ZmNGM0YWUwMDAyIiwic2lnIjoicjZ1L0x6Z3VwbDFOalhrVnNJSHhkRE8xVEcwPSIsInRpbWUiOiIxNTQ1Mzk0MDk2IiwidXVpZCI6IjhleTB4elVZdjZGTHBmUTBSSXlwcVE9PWJRVmZHRnhvdnhmbTl6VWdabU53MlE9PSIsInYiOiIxIn0=

Would-be class action plaintiffs jujitsu Uber’s arbitration agreement

In a move Bruce Lee would have admired, a group of 12,501 drivers seeking to assert wage-hour and related claims against Uber — faced with having each executed arbitration agreements — have filed a Petition in the federal courts for the Northern District of California demanding just that, 12,501 individual arbitrations.

The Petition illustrates what is likely to become a powerful tactic for would-be class/collective action plaintiffs who find themselves otherwise stymied by arbitration agreements that do not permit class/collective actions. As reported here, the U.S. Supreme Court recently endorsed arbitration agreements as effective tools against class/collective action litigation. This move turns that tool back onto the employer itself.

The drivers allege that, as early as August 18, 2018, they began submitting claims to arbitration under the arbitration agreements. The drivers allege that, as of the time of the Petition, 12,501 demands for arbitration had been submitted.

Of those 12,501 demands, in only 296 has Uber paid the initiating filing
fees necessary for an arbitration to commence. Out of those matters, only 47 have
appointed arbitrators, and out of those 47, in only six instances has Uber paid the
retainer fee of the arbitrator to allow the arbitration to move forward..

Why hasn’t Uber (allegedly) paid the arbitrator’s retainer fees in the other cases? Well, if true, it might be related to the (alleged) fact that (according to the Petition, the fee in each such case is a “NON-REFUNDABLE filing fee of $1,500 for each.” As in, according to the Petition, a total of $18,681,000 (12,501-47x$1,500), just to start each of the 12,501 cases.

Are the Uber drivers asking the court to, therefore, let them out of their arbitration agreements? Are they asking the court to allow them to pursue a class/collective action in court? No, because that would be contrary to recent Supreme Court decision. Instead, they’re asking the Court to order Uber to comply with the (alleged) arbitration agreements, starting by paying the initial arbitration fees. The Petition seeks other relief to include an order requiring Uber to continue to participate in each of the 12,501 arbitrations and to pay the drivers’ attorney fees and costs in prosecuting their Petition.

 

What Does ACA Ruling Mean? | Colorado’s Morning News | KOA NewsRadio

Great time this morning on 850 KOA Colorado’s Morning News, discussing the Texas court’s recent ruling, holding that the Individual Mandate in Obamacare exceeds Congressional power and is inseverable from the remainder of Obamacare. Reminder, although the judge has struck down Obamacare, the judge has not yet issued a final ruling. How and whether the Texas court will issue an injunction freezing Obamacare is yet to be seen. Employers should continue to comply with Obamacare at this time.

We discuss this week’s healthcare ruling and what it means going forward.  Does the ruling have an immediate impact on those depending on the…
— Read on koanewsradio.iheart.com/featured/colorado-s-morning-news/content/2018-12-18-what-does-aca-ruling-mean/

Fifth Circuit affirms OSHA’s Controlling Employer doctrine

Applying Chevron deference, the Fifth Circuit has affirmed OSHA’s controversial Controlling Employer doctrine, which allows OSHA “to issue citations to controlling employers at multi-employer worksites for violations of the Act’s standards,” even if none of the controlling employer’s workers were exposed.

Source: Acosta v. Hensel Phelps Construction Company (5th Cir. 11/16/18).