I like the EEOC – I really do. They do important work, and most of the time they seem to get it right. But every once in a while they dig in their heels over something patently ridiculous, leaving employers and management attorneys like me tearing out our hair in frustration. So there’s no small
Litigation
NLRB Recess Appointments Ruled Unconstitutional
By Bryan M. O'Keefe on
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…
EEOC’s Own Use of Criminal Background Checks
Posted in Background Checks, Litigation
The 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…
NLRB Election Rules Still Invalid
By Mark J. Swerdlin on
As 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…
Expensive Potential Consequences of Not Effectively Remedying Harassment in the Workplace
By Patrick M. Pilachowski on
Posted in Litigation, Sexual Harassment
Two 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…
NLRB General Counsel New Social Media Report
By Mark J. Swerdlin on
The 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
…
Secret Recording of Meeting Was Protected Concerted Activity
By Patrick M. Pilachowski on
Posted in Labor Law & NLRB, Litigation
The 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…
NLRB Election Rules Invalid — For Now
By Bryan M. O'Keefe on
“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…
FMLA Requires Compliance with Call-In Procedures
By Fiona W. Ong on
Posted in Employee Leave (FMLA and ADA), Litigation
As 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…
SSDI Recipient’s ADA Claim Foreclosed
Posted in Employee Leave (FMLA and ADA), Litigation
According 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…