Beware of Lawyers’ Blogs
Looking for insight into the latest news in employment law? If so, you might want to avoid reading a blog post.
Many legal bloggers do an amazing job, processing cases within minutes (or days) of their release. And then they do another, and another, and another.
So, they’re in a hurry. And because they’re writing primarily for a non-lawyer audience, they’ll probably need to simplify the story (or law) to explain the case. Plus, craving attention, they’re looking for a headline, which is best if it’s entertaining, shocking, or provocative. Finally, some may have an ax to grind and be willing to color facts to tell their story, while others can be sloppy with their legal analysis.
As a result, you can’t always trust as “legal advice” what lawyers write on their blogs (and they’ll be the first to tell you this).
If no one asks, they can’t be denied: One of the labor law issues that the NLRB was expected to change under President Obama’s administration has to do with so-called “Weingarten” rights — whether a non-union employee has the right to request that a co-worker attend disciplinary meetings. Recently, we saw a lawyer’s blog post about a February 2012 case Praxair Distribution (NLRB), that claimed the case “clearly and unequivocally” resolved the Weingarten issue.
However, by reading the case in detail — including footnote 2 — one may discover that two-of-the-three NLRB Commissioners indicated that it was “unnecessary” to decide the Weingarten issue. In fact, the Weingarten issue wasn’t even properly raised by the case; as the NLRB noted, “there has been no showing that [the employee] requested, or that the [employer] prohibited, the presence of a coworker at the investigatory interview.”
Despite the blog post describing this as a case in which the NLRB denied non-union workers their Weingarten rights, we’ll have to wait until an employee actually asks for a co-worker/representative before getting the NLRB’s current view on the question. This case, unfortunately, does not answer the question.
We do it differently now: A recent case involving the Americans with Disabilities Act (ADA) provides a second example of a lawyer’s misleading blog post. The case, Boitnott v. Corning (4th Cir. 2012), concerned an employee who couldn’t work overtime in 2005 after a heart attack and leukemia.
Because the events occurred before 2009, the old (pre-amended) ADA applied. So, the recent Court opinion, which concluded that the employee didn’t have a “disability” (since he could work up to 40 hours per week), is no longer relevant, since the employee’s medical condition itself (leukemia) now qualifies as a “disability” under the current (amended) ADA.
The fact that the employee didn’t have a disability under the pre-amended ADA, but would now, was largely ignored by lawyers who burden themselves with quickly pumping out blog posts. Even though this employee would now have a disability (and thus be entitled to a “reasonable accommodation”), one lawyer posted an article stating that this case “absolves” employers from having to accommodate disabled workers who can’t work overtime.
However, this case in no way limits the need to accommodate individuals who do have an ADA disability. If someone has a disability (e.g., leukemia) and cannot work overtime, the ADA (both before the amendments and after) requires the employer to consider accommodations such as a reduced work schedule, or simply excusing them from overtime assignments.
So, check the lawyers’ blogs for references and citations to the latest cases. But, don’t believe what they say about those cases, until you (or someone else) takes the time to check out the source material with the deliberate attention necessary for an accurate analysis.