Wyatt Employment Law Report


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The EEOC Weighs in on HIV-Positive Workers

By Amanda Warford Edge

The Equal Employment Opportunity Commission (EEOC) has long considered HIV infection to be a disability within the scope of the Americans with Disabilities Act (ADA). From 1997 to 2014, the EEOC received in excess of 4,000 charges alleging ADA violations based on HIV status. In 2014, the EEOC resolved 197 charges and obtained over $800,000 for individuals who filed charges based on HIV status. The EEOC has also filed several lawsuits over the past few years against employers based on claims alleging failure to hire, discrimination and failure to accommodate individuals with HIV.

On December 1, 2015, in conjunction with World AIDS Day, the EEOC posted two publications that address HIV-positive workers. Through these publications, the EEOC makes clear that employers “cannot rely on myths or stereotypes about HIV infection when deciding what [they] can safely or effectively do.”

The first publication, entitled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” removes all doubt that those with HIV: (1) have workplace privacy rights; (2) are protected from discrimination because of Continue reading


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Beware of Spyware

By Debra H. Dawahare

            Employers are often tempted to learn more than they really want to know about their employees, especially if the employer suspects a fraudulent workers’ compensation claim,  illegal drug use, or other behavior that could affect work performance or reflect poorly on the company. Except in extreme and very well controlled circumstances, employers should avoid conducting surveillance of employees outside work. 

           At least two recent lawsuits have resulted from alleged unlawful home surveillance using webcams.  Though neither arose in an employment context, these cases provide instructive scenarios for employers to avoid—no matter how great the temptation to learn what employees are really up to.

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The Genetic Information Nondiscrimination Act

By LaToi D. Mayo

GINA was first introduced in the House in 1995, finally passed in 2008 and signed into law by President G. W. Bush in May 2008.  GINA includes two titles. Title I amends portions of the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code, and addresses the use of genetic information in health insurance. Title II prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.

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Employees’ Blogs and Social Network Postings: More than Employers Should Know?

By Debra H. Dawahare

Until June 2009, the City of Bozeman, Montana required job applicants to list login and password information for social networking sites in which the applicants participated.  This, of course, meant that even if the applicant (or the applicant’s contacts on the site) had privacy controls on their accounts, the City could read all about them.   Continue reading