Employer violated the Americans with Disabilities Act by giving job applicants medical exam before conducting background check.

Three HIV positive individuals who applied for flight attendant positions with American Airlines could not be automatically denied jobs even though they failed to disclose their health status to the company, a court recently ruled. After the men applied for positions and were interviewed, they were given job offers conditioned on successful background and reference checks, as well as a medical exam and drug test. The company initiated the medical exam and drug test first, asking each applicant about health issues and medications. All three men denied taking any medications or having health problems even though each was on medicines for HIV. When the men’s blood tests revealed HIV, they were told their job offers were being withdrawn for failure to be truthful during the application process.

The court held that the company erred by giving the men medical exams before completing their background and reference checks. Although the ADA allows employers to conduct medical exams before making a final offer of employment to determine whether applicants can safely perform a job, the exam may only be conducted after the applicant has met all other job pre-requisites, including background checks. This will allow individuals to determine whether they were rejected because of their disability or because of some other reason. It also allows applicants to keep their medical status a secret until they know whether they have passed all of an employer’s other requirements for working.

Even though the plaintiffs in this case lied about their medical status, they could not be automatically disqualified from employment. This case shows the importance of understanding the ADA and its requirement that medical exams be the very last step in identifying qualified job applicants.

–Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

Casino and bar may lawfully require female bartenders to wear makeup.

A female bartender who was fired after she refused to wear makeup during working hours cannot continue with her lawsuit for sex discrimination. The casino where she had worked for over 20 years instituted a “personal best” policy that included grooming requirements which required all female servers and bartenders to wear makeup. Men were required to keep their hair short and nails trimmed, and were prohibited from wearing makeup. The plaintiff felt that wearing makeup was demeaning, made her seem like a sex object, and took away her authority when dealing with drunk or unruly customers.

The court held that it was legal for the casino to have different grooming requirements for men and women. It is only unlawful to have different standards if the burden on one gender is greater than on the other. In this case, although the plaintiff argued that it was more expensive and time consuming for the female employees to wear makeup than for the males to simply keep their hair short, she did not present any evidence at trial to support her claims. Therefore, the court found that the overall burden on male and female servers and bartenders to keep a neat appearance pursuant to the policy was equal, and thus okay.

Before implementing any sort of grooming standard for employees, an employer should make sure that it treats men and women equally. For example, in a case involving airline flight attendants, the court held that it was unlawful to require women to maintain a weight that is below the national average for their height while allowing men to maintain an average weight.

–Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

Failure to monitor what employees post on their walls can lead to liability.

It is common in many workplaces for employees to post pictures, posters, cartoons, decorative calendars and the like on the walls or doors of their offices or cubicles. While such decorations may be amusing or help increase morale by making the workplace more inviting, they can also be a source of liability if they depict racist, sexist, or otherwise derogatory or pornographic material. And what is funny or silly to some may be offensive to others.

Allowing workers to display offensive material may expose an employer to liability for harassment, even if the company argues that it did not know such material was being put on view. This includes the display of sexually suggestive objects, pictures, magazines, posters, cartoon or calendars. It also covers materials that mention race, religion, national origin, or any other protected category in a derogatory manner.

Employers should make sure that their employee handbook and any other written policies against harassment specify that workers may not post or display derogatory or offensive materials. The policy should specify that the ban on displays covers not only office and cubicle walls, but also lockers (both inside and out), lunch boxes and other personal work spaces.

–Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

Employers now required to post poster of employees’ rights regarding return to work after military leave.

In December 2004, President Bush signed the Veterans Benefits Improvement Act of 2004 which included, among other things, a requirement that employers post a notice of employees’ reemployment rights after completing military service. The right to be reemployed is set forth in the Uniform Services Employment and Reemployment Rights Act (USERRA). USERRA provides reemployment protection and other benefits for veterans and employees who perform military service. The posting requirement became effective March 10, 2005.

A copy of the poster may be downloaded or printed out from the Department of Labor’s Web site (www.dol.gov/vets).The website explains that the notice of rights must be posted in a prominent place where employees usually check for information. Since employers should have other notices already posted in the workplace (such as those explaining employees’ rights under the Family and Medical Leave Act), the USERRA poster can be posted in the same place.

–Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

Court holds that telecommuter must pay full taxes in state where company is located, even though he works elsewhere.

A computer programmer who telecommuted from his home in Tennessee to his office in New York has been ordered to pay state income taxes as if he was a full time New York employee. The man spent approximately 25 percent of his work time in his employer’s New York office, and the rest of the time working from his home. After he paid New York state taxes based on the time he actually spent in the office, the state’s department of taxation told him he needed to pay 100 percent of New York state taxes.

The court held that all of the employee’s work was performed “within the state” of New York, as it was for the benefit of the New York employer, and that his choice to telecommute was solely for his own benefit. By choosing to work for a New York company, and thus earn a New York level salary and fringe benefits, he needed to pay full taxes as a New York employee. This case may have a big impact on telecommuting in the future. Employers with out-of-state telecommuting employees may need to review their state’s tax laws to figure how much state tax each worker will have to pay. Workers who telecommute will also need to decide if higher taxes are worth the convenience of working from home in another state.

–Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

This article originally appeared on Monster.com. Copyright 2005 Monster.com