Q: We have an employee who is unable to perform some of his essential job requirements because of physical limitations due to his weight.  Do we need to provide him with an accommodation?

 A: Given that almost one-third of the U.S. population is considered obese, many employers are struggling with whether to provide accommodations for employees whose weight prohibits them from performing all of their job functions. Whether obesity falls under the Americans with Disabilities Act is a hotly debated issue. Employers must juggle the cost and resources of providing accommodations with the desire to create a comfortable environment for all employees and avoid discrimination claims.

Signed into law on May 11 of this year, the federal Defend Trade Secrets Act of 2016 (“DTSA”) amends the Economic Espionage Act to create a private civil cause of action for trade secret misappropriation, and it has been hailed by the New York Times and other authorities and media outlets as the “most significant expansion in federal intellectual property law in the past 70 years.”  Yet, for decades, state trade secret laws have already been a fundamental source of protecting the confidential information of business in the United States. 

Q.  One of our employees complained that she is uncomfortable sharing the bathroom with an employee who is in transition. What are we required to do to provide a comfortable work environment for everyone?

Many employers are having discussions about equal employment opportunities for transgender employees and what steps are necessary to make the work environment comfortable for everyone.

Q.  I have been told that Pokémon Go is a lot of fun, but it seems like my employees are spending more time trying to catch fictional monsters than getting their work done. How do I keep this craze in check?

Yours is not the only workplace to succumb to the Pokémon Go craze! In a recent poll by Forbes and Apester, 69 percent of the employees surveyed admitted to playing Pokémon Go at work. Even more disturbing, more than one-third of the employees confessed to spending more than an hour of the workday playing the game.

Listen up, employers:  On August 1 — that’s two days ago! — the Department of Homeland Security increased the Form I-9 violation fines by approximately 96%.  Specifically, the range of fines for violations went from $110-$1,100 per Form I-9 to $216 -$2,156 per Form I-9.  This could be particularly problematic for larger companies, as an untrained staff person completing numerous I-9s incorrectly can lead to an exorbitant amount in fines.  On the other hand, smaller companies have less in volume but sometimes they can commit more substantive errors which can lead to fines on the higher-side of the range.  Both are bad results that your business should want to avoid.

Many employers today have implemented arbitration programs mandating that workplace-related disputes brought by or against their employees be decided by an arbitrator. Arbitration can provide for efficient resolution of disputes in a confidential setting.  It is also possible through the use of a carefully worded agreement to limit disputes to just one employee’s claims and prevent an employee from bringing claims on behalf of others in a class action.

Q: An employee has asked to work from home because of his disability. Do I have to provide him with that option?

A: With technology making it easier than ever for people to work remotely, more employers are seeing requests to offer telecommuting as a reasonable accommodation of a disability. But, depending on the job, telecommuting may not be the best option, or even an option at all.

The U.S. Equal Employment Opportunity Commission (EEOC) defines systemic discrimination as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” In 2005, the EEOC examined the state of its systemic discrimination program and issued numerous recommendations for changes in strategy, all of which resulted in the adoption of the Systemic Task Force (STF).   The STF has been a game changer for EEOC enforcement, setting priorities that have shaped the EEOC’s agenda and strategic vision over the last decade.  Among the STF’s primary recommendations was to make combating systemic discrimination a top priority. To do so, the STF advocated for the use of a national law firm model in litigating systemic cases by staffing systemic suits based on the needs of the suit, independent of the office where the case was developed.

Q.  I read somewhere that it is ok sometimes to choose employees of a particular sex, national origin or religion. Isn’t that discrimination?

A.  Federal, state and many local laws prohibit employers from basing employment decisions on any protected category, including an employee’s sex, national origin or religion. While there are certain exceptions, such as where a particular protected category is a bona fide occupational qualification, the exceptions are extremely narrow, as one Broadway show found out the hard way.

Q.  The world feels like a scary place these days. In light of current events, what are my obligations with respect to providing a safe workplace for employees.

A.  You are not alone in asking this important question. The sad and horrific string of mass shootings — from Sandy Hook to San Bernadino to Orlando to Dallas to Baton Rouge — is causing many employers to take a hard look at their workplace violence policies and programs.