On January 25, 2013, the United States Court of Appeals for the D.C. Circuit held that President Obama’s recess appointments to the NLRB over the past two years are unconstitutional because the appointments did not occur while the Senate was in a formal recess (Republican members of the Senate, during the period that normally would… Continue Reading
Category Archives: Litigation
Subscribe to Litigation RSS FeedEEOC’s Own Use of Criminal Background Checks
Posted in Background Checks, LitigationThe EEOC is suing Freeman, an events marketing company, challenging the legitimacy of the company’s use of criminal background checks in hiring. Although the company’s screening process applies to all applicants, the EEOC claims the criminal checks have a discriminatory impact on Hispanic, Black and male applicants. Freeman defends them as job related and consistent… Continue Reading
NLRB Election Rules Still Invalid
Posted in Labor Law & NLRB, Litigation, UnionsAs we reported in May, the United States District Court for the District of Columbia invalidated the NLRB’s proposed “quickie” election rules, on the grounds that the Board lacked a proper quorum on the day of voting. Member Brian Hayes never formally voted on the rules, though he did indicate in the days before the… Continue Reading
Expensive Potential Consequences of Not Effectively Remedying Harassment in the Workplace
Posted in Litigation, Sexual HarassmentTwo recent harassment cases are attention-getters because they illustrate the potentially high stakes damages to which employers are exposed. The EEOC recently announced a final judgment of over $1 million against Whirlpool Corporation, which dropped its appeal to the U. S. Court of Appeals for the Sixth Circuit in Ohio in a sexual and race… Continue Reading
NLRB General Counsel New Social Media Report
Posted in Labor Law & NLRB, Laws & Regulations, Litigation, UnionsThe NLRB General Counsel’s office has released its third report on recent social media cases. The GC reviewed social media and confidentiality policies from several companies and found most policies unlawful. In particular, the GC found the following portions of various social media and confidentiality policies unlawful: “Don’t release confidential guest, team member or company… Continue Reading
Secret Recording of Meeting Was Protected Concerted Activity
Posted in Labor Law & NLRB, LitigationThe U.S. Court of Appeals in D.C., in Stephens Media, LLC v. NLRB, just upheld a finding by the NLRB that an employer in Hawaii unlawfully punished protected concerted activity when it interrogated four employees and discharged one of them for surreptitiously recording a meeting with a management representative. The employer had no policy against… Continue Reading
NLRB Election Rules Invalid — For Now
Posted in Labor Law & NLRB, Litigation, Unions“According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically.” So begins United States District Court Judge James Boasberg’s opinion… Continue Reading
FMLA Requires Compliance with Call-In Procedures
Posted in Employee Leave (FMLA and ADA), LitigationAs I mentioned in my five-part blog series on managing possible leave abuse under the FMLA, employers can hold employees accountable for failing to comply with call-in procedures, even when the absence is connected with FMLA. This point was well-illustrated in the recent case of Chappell v. The Bilco Company, in which the employee ably demonstrated… Continue Reading
SSDI Recipient’s ADA Claim Foreclosed
Posted in Employee Leave (FMLA and ADA), LitigationAccording to a recent article in the Wall Street Journal, the cost of Social Security Disability Insurance (SSDI) benefits has skyrocketed. In 2010, U.S. workers paid $104 million into the program, while far more – $127.7 billion – was paid out in benefits. Much of this is due to expanded definitions of disability, but the… Continue Reading
ADA Public Accommodation Abuse
Posted in Employee Leave (FMLA and ADA), Laws & Regulations, LitigationWhile most employers are familiar with Title I of the Americans with Disabilities Act (“ADA”), which prohibits discrimination in employment against those with disabilities, many are less familiar with Title II of the ADA which requires that places of public accommodation and commercial facilities be designed, constructed or altered so that they are accessible to… Continue Reading
NLRB Poster D.C. Circuit Injunction
Posted in Labor Law & NLRB, Laws & Regulations, Litigation, UnionsBREAKING NEWS! In a follow-up to our blog posting from this morning, the United States Court of Appeals for the District of Columbia just issued an injunction preventing the NLRB from enforcing its poster rule while the Court considers an appeal of the prior D.C. District Court case which upheld a portion of the rule. … Continue Reading
NLRB Poster Update
Posted in Labor Law & NLRB, Laws & Regulations, Litigation, UnionsAs we blogged over the weekend, a federal District Court in South Carolina on Friday struck down the NLRB poster rule, on the grounds that the NLRB exceeded its authority in promulgating the rule. This ruling directly conflicts with an earlier decision from a federal District Court in Washington, DC which upheld the NLRB’s authority… Continue Reading
NLRB Poster Struck Down
Posted in Labor Law & NLRB, Litigation, UnionsBREAKING NEWS! The United States District Court for the District of South Carolina just struck down the NLRB poster requirement set to go into effect on April 30, 2012. Contrary to the District Court for the District of Columbia ruling, the federal court in South Carolina found that the NLRB exceeded its authority in promulgating… Continue Reading
Highmark CEO Case Shows Danger of Workplace Relationships
Posted in Employment Discrimination, HR Compliance, Litigation, Sexual Harassment, UncategorizedA cautionary tale about workplace relationships comes out of Pittsburgh this week The sordid story involves the – now former – CEO of Highmark, 58-year-old Dr. Ken Melani. A well-respected figure in the community, Dr. Melani was riding high – CEO of a major, national company, and a $4.3 million dollar salary to boot. But,… Continue Reading
NLRB Board Appointments and 10 (j) Delegation Upheld
Posted in Labor Law & NLRB, Litigation, UnionsA few weeks ago, I wrote about an important 10 (j) case in federal court in New York where the Defendant was challenging (1) the constitutionality of Obama’s recess appointments; (2) the Labor Board’s ability to delegate 10 (j) authority to the General Counsel’s office; and (3) if such a delegation survives once the Board’s membership falls below a… Continue Reading
Union Handbilling Allowed
Posted in Labor Law & NLRB, Litigation, UnionsThe United States Court of Appeals for the Seventh Circuit recently handed down a decision on union handbilling that employers should note (Roundy’s Inc. v. NLRB, Nos. 10-3921 & 11-1292). The case involved a grocery store chain in Wisconin, Pick ‘N Save. The chain was using non-union contractors to remodel some of its locations. This… Continue Reading
Supreme Court Decides FMLA Case
Posted in Employee Leave (FMLA and ADA), LitigationBREAKING NEWS: The Supreme Court handed down a FMLA decision with Maryland roots today, Coleman v. Court of Appeals of Maryland. The Court found that the Family Medical Leave Act did not abrogate state soverign immunity for self-care claims. The issue in Coleman: States have soverign immunity from lawsuits unless Congress specifically abrogates that immunity with… Continue Reading
Labor Unions Strike Out With 11th Circuit on Neutrality Agreements
Posted in Labor Law & NLRB, Litigation, UnionsMany labor unions by-pass the traditional NLRB election process in organizing. Instead, unions will approach an employer and ask if the employer will agree to recognize the union if the union obtains a majority of signed union authorization cards — i.e. “card check.” The union will also ask that the employer sign a “neutrality agreement”… Continue Reading
Arbitration Agreements Found Lawful
Posted in Laws & Regulations, LitigationMany employers prefer to arbitrate employment disputes rather than have these disputes end up in the traditional courtroom with a jury. As a result, a fair number of employers require their employees sign arbitration agreements for employment litigation, including class action claims. The validity of these class action waivers was called into question by the NLRB… Continue Reading