Employment Law Articles

Off Duty Tobacco Use Protected in Connecticut

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            A recent attempt by a Michigan based employer to terminate employees for their off the job use of tobacco has drawn national attention. The employer’s policy prohibits employees from using tobacco at any time. In addition, the company conducts pre-employment tobacco testing, and random tests for tobacco use. It even permits the employer to search employees for tobacco products based on reasonable suspicion. Violations can result in termination.

Health Insurance and the Morbidly Obese Employee

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Issue

Can an employer introduce differentiated health insurance premiums for morbidly obese individuals without violating the Americans with Disabilities Act and the Connecticut Fair Employment Practices Act?

Brief Answer

An employer can charge morbidly obese employees a higher premium only if it can prove that the distinctions are based on sound actuarial principles, or are related to actual or reasonably anticipated experience, and that employees with other conditions that pose the same risks and costs are charged the same higher rate.    

Taxability of Attorney’s Fees

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            On October 22, 2004 President Bush signed the American Jobs Creation Act of 2004 (the “Act”) into law. A key provision of the Act permits employees to fully deduct attorney fees and court costs paid by, or on behalf of, the employee in connection with any action involving a claim of unlawful discrimination.

Employee Misconduct Investigations Under FCRA

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On December 4, 2003, President Bush signed the Fair and Accurate Credit Transactions Act of 2003 (“FACT”) into law. 108 P.L. 159 (2003). The Act, in part, changes a controversial provision of the Fair Credit Reporting Act (“FCRA”) governing third party employee misconduct investigations. 15 U.S.C. 1681-1681u. Prior to the passage of FACT, the Federal Trade Commission (“FTC”), in interpreting a set of 1997 FCRA amendments, took the position that employers were required to obtain employee permission prior to initiating third party misconduct investigations against them, and then had to share the investigatory results with the employee prior to taking any “adverse action.” FACT removes the prior permission and pre adverse action notice requirements, and limits the information employees are entitled to receive once an “adverse action” is taken.


 

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