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Tuesday Link Roundup and Shutdown News

With the federal government shutdown the big news today, I
thought it appropriate to include some information about how the shutdown will
impact enforcement and litigation of employment law issues at the federal
level.  While many entitlement programs,
such as Social Security and Medicare, will not be affected, a number of
employment law-related agencies will be
The EEOC has notified the public that while charges will still be accepted,
they will not be investigated, no hearings or mediations will be conducted, and
no FOIA requests will be processed.  The Department
of Labor will similarly reduce staffing levels- in particular, the Wage and
Hour Division will be reduced down to six employees
, and it seems reasonable to
imagine no investigations will take place.

On a different note, following up on our post a couple of
weeks ago, the Minnesota Orchestra announced that it has made its fourth
contract offer to its players
.  The
contract will offer a signing bonus made possible by donations from local
foundations and organizations.  While
still a cut in pay, the contract may allow for the orchestra season to begin in
time for practices to be scheduled in advance of a performance by the orchestra
in New York in Early November.

Lastly, the Employer Handbook has a useful
survey of which circuits have found that ADA reasonable accommodation transfer
requirements trump the applications of more qualified employees
.  ADA law is quite clear that transfer to a
vacant position for which the disabled employee is qualified is a reasonable accommodation.  What is less clear, however, is what happens
when the disabled employee is only barely qualified for the vacant position and
the employer has other applicants who are much more qualified.  Circuits have differed on whether the ADA
requirement, if no other reasonable accommodation is available, trumps the more-qualified
applicant’s better fit for the job.
While the 8th Circuit has held that the more qualified
candidate gets the job, the D.C. Circuit has held the opposite, noting that the
ADA requirement holds.