Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

A panel of the U.S. Court of Appeals for the Ninth Circuit recently held in Alvarado v. Cajun Operating Company, that compensatory and punitive damages are unavailable to a  plaintiff who brings an ADA retaliation claim.  Consistent with a prior Seventh Circuit ruling  in Kramer v. Banc. of Am. Sec., 355 F.3d 961 (2004), the Alvarado Court found that the ADA specifically excludes a retaliation claim under Section 12203 from awards of  compensatory and punitive damages.  The court reasoned that Section 1981(a)(2) of the ADA does not list claims brought under section 12203 as one of the enumerated categories of claims meriting compensatory and punitive damages.  Since the statute specifically enumerated other claims under the ADA where punitive and compensatory damages are proper remedies, the court found that Congress intended for those claims, and not those under Section 12203, to get punitive and compensatory damages as a remedy.  In addition, the court held that since ADA retaliation claims are only subject to equitable relief, no jury trial is available.

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What to do with an employee who tested positive for marijuana used to be an easy decision.  That is not necessarily the case anymore.

Thirteen states have legalized the use of marijuana for medical purposes.  Some of these states require employers to accommodate the medical use of marijuana.  Although use of marijuana remains illegal under the federal Controlled Substances Act regardless of whether it is medically prescribed, the U.S. Department of Justice announced in October 2009 that federal agents will target users and distributors of marijuana only when they violate both federal and state laws.  In addition, employers may have to consider whether they must allow employees to use medical marijuana as a reasonable accommodation pursuant to the federal Americans With Disabilities Act (ADA).  These developments have caused employers to re-examine their “zero tolerance” policies with regard to drug use by employees.

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President Obama recently nominated Victoria A. Lipnic for a seat on the five-member Equal Employment Opportunity Commission (EEOC).  Lipnic is Republican, with an extensive background in employment law.  During the prior Administration, she served as Assistant Secretary of Labor for Employment Standards from 2002-2009.  In that capacity, Lipnic oversaw the Department of Labor’s largest agency, and led the teams that revised the Part 541 overtime regulations under the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA) regulations.
 

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Companies doing business in California, particularly retailers, should be aware of a recent revision to the California Financial Code that sets out new accessibility requirements for point-of-sale devices.  A point-of-sale device includes any device used by a customer for the purchase of a good or service with a debit, credit or cash card where a personal identification number (PIN) is required. 

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