Abstract
1943 was only 70-odd years ago, which, in the grand scheme of things, is not that far ofF. yet consider how far we have come in the last seven decades, not the least of which in the area of personal liberties and civil rights.
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References
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29 C.F.R. § 825.300(a)(3). Employers are free to use the model policy provided by the United States Department of Labor, which you can find at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdF.
29 C.F.R.§ 825.200
29 U.S.C.§ 157.
29 U.S.C.§ 158(a)(1).
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (d.C. Cir. 1999).
Lutheran Heritage Village-Livonia, 343 nlrB 646, 647 (2004).
See, e.g., Wing v. Anchor Media, Ltd., 570 N.E.2d 1095 (Ohio 1991).
See Am. Red Cross Ariz. Blood Servs. Region, Case no. 28-CA-23443, 2012 NLRB LEXIS 43, *66. (N.L.R.B. Feb. 1,2012).
White v. Fabiniak, Case No. 2007-l-100, 2008-Ohio-2120 (Ohio Ct. App. may 2, 2008).
524 U.S. 742, 118 s. Ct. 2257, 141 L Ed. 2d 633 (1998).
524 U.S. 775, 118 s. Ct. 2275, 141 L. ed. 2d 662 (1998).
Ellerth, 524 U.S. at 765.
Case no. 1:09 CV 2119, 2011 U.S. Dist. LEXIS 19881 (N.D. Ohio Mar. 1, 2011).
656 F. 3d 411 (6th Cir. 2011).
Id. at 418-419.
Charles Coleman, Is Mandatory Employment Arbitration Living up to Its Expectations? A View from the Employer’s Perspective, ABA Journal of labor & Employment law, Vol. 25, no. 2 (Winter 2010) (concluding that the average costs and fees in an employment arbitration were $ 102,338, as compared to $70,491 in litigation, while the average life cycle of an employment arbitration, from filing to decision, was 21 Months, as compared to 17 Months in litigation).
757 F. 2d 752 (6th Cir. 1985).
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397 F. 3d 352 (6th Cir. 2004); see also Alonso v. Huron Valley Ambulance, Case no. 09-1812, 375 Fed. Appx. 487 (6th Cir. Apr. 26, 2010).
A.g. Sulzberger, “hospitals shift smoking Bans to smoker Ban,” new york Times, (feb. 10, 2011) Al.
Cleveland Clinic, “A message About Smoking from Dr. Cosgrove,” http://my.clevelandclinic.org/tobacco/a_message_about_smoking.aspx.
Cleveland Clinic, “New Nonsmoking Hiring Policy at Cleveland Clinic,” http://my.clevelandclinic.org/Documents/Urology/Non-Smoking_Hiring_Statement.pdF. In the spirit of “wellness,” the Clinic has also banned from its campus the sale of any non-diet sodas. it has no problem, though, selling McDonalds, doughnuts, and hubcap-sized cookies (which, in my experience, are delicious) in its cafeteria. if anyone can explain this dichotomy to me, i would appreciate it.
Whether or not a court will agree that “smoking” (or, more accurately, nicotine addiction) is a protected disability is very much an open issue. if, however, you operate in a state without an off-duty-conduct or smokers-rights law and you want to execute a workforce smoke-out, consider whether you want to be the test case under the ADA. If you are a large company with billions of dollars of assets at your disposal, eating a six (or even seven) figure lawsuit is tolerable to defend a policy about which you feel strongly. if, however, you are like most (almost all?) businesses, you will not want to eat the expense and exposure of such a lawsuit. instead, the better practice is waiting until litigants willing and able to bear the risk of testing these theories in court and only adopt such a policy if, and when, courts give their blessings.
990 A.2d 650 (N.J. 2010).
Id. at 657.
Id. at 665.
See the discussion regarding workplace bans on salary discussion earlier in this chapter.
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Case no. 13-CA-46452, 2011 NLRB LEXIS 554 (N.N.R.B. Sept. 28, 2011).
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Michael J. Eastman, U.S. Chamber of Commerce, A Survey of Social Media Issues Before the NLRB,,(Aug. 5, 2011).
National Labor Relations Board Office of the Acting General Counsel, Report of the Acting General Counsel Concerning Social Media Cases, Memorandum om 12–59 (May 30, 2012).
358 NLRB No. 106 (N.L.R.B. 2012).
Id. at p. 1.
Id. at p. 3.
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2008-Ohio-4560 (Ohio Ct. App. sept. 10, 2008).
Id. at ¶ 11.
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Hyman, J.T. (2012). The Right to Set Sane Work Rules. In: The Employer Bill of Rights. Apress, Berkeley, CA. https://doi.org/10.1007/978-1-4302-4552-0_5
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