Ten Most Recent Federal Articles
Employers May Not Be Entitled to Full Disclosure of Potential EEOC Class Action Before Suit Is Filed
Employers often expect that, before the EEOC can expand a single-employee EEOC charge into a class action lawsuit, the EEOC must explain the scope of any potential class action and offer an employer the opportunity to resolve it. That expectation is open to question, however, after the Northern District of Illinois’s recent decision in EEOC v. Union Road Towing, Inc. In that case, the Court rejected an employer’s attempt to eliminate an EEOC class action based upon the limited nature of the EEOC’s pre-suit disclosures. Because the Seventh Circuit has not yet resolved this specific issue, the district court’s ruling increases the risk to Illinois employers that the EEOC can turn adverse findings in single-employee charges of discrimination into claims on behalf of an entire class of employees, without first affording the employer an informed opportunity to attempt to resolve such class-wide claims. As explained below, to retain the possibility of pre-lawsuit resolution of such claims and avoid expansive discovery, employers should repeatedly seek clarification of the scope of any potential class action referenced in EEOC reasonable cause determinations or conciliation discussions.
“I’m Too Sexy For My Job” . . . Part Three
Is it unlawful to fire an employee for being too sexy? Well, it depends.
Expect Delays in Receipting of I-129 Petitions
The U.S. Citizenship and Immigration Services (USCIS) today announced that, due to the high number of I-129 petitions recently filed with USCIS (presumably as a result of the large volume of FY 2013 H-1B cap filings), customers will experience a longer than usual period of time to receive their receipt notices - possibly an additional 2 to 4 weeks.
COURT STRIKES DOWN NLRB’S NEW UNION ELECTION RULES
In previous Compliance Matters, we discussed the NLRB's new election rules, which took effect April 30, 2012, and the Memorandum issued by the NLRB's General Counsel to advise the Board's Regional Offices on implementing them. Those rules are now on hold because a federal judge in Washington, D.C. ruled on May 14 that the Board did not have the three-member quorum required to adopt the rules because one member did not participate in the vote.
Employment Law Thermometer
What's the hottest employment law issue in the universe right now? Results of our latest poll.
2013 H-1B Cap Count (5/18/12 Update)
As of May 18, 2012, the U.S. Citizenship and Immigration Services (USCIS) has received a total of approximately 58,000 H-1B cap filings for employment in FY 2013: 42,000 petitions have been receipted against the “regular cap” of 65,000 and 16,000 H-1B petitions have been receipted against the “Master’s cap” of 20,000 for foreign nationals with advanced degrees from U.S. universities and colleges.
Two Medical Conditions Can Equal One FMLA Serious Health Condition
Employers beware: Just when an employee gives you the left jab, look for the right hook. The combination of the two, as far as the Family and Medical Leave Act is concerned, can knock employers out. As reported by my colleague, Scott Cruz, last week, an employee may be able to add up two medical conditions -- neither of which would alone constitute a serious health condition under the FMLA -- to take FMLA leave.
Airline Industry Legal Alert: NMB Announces Public Hearing on Proposed Rule Implementing RLA Amendments Which May Eliminate Carrier Victory in a Tie
On May 22, the National Mediation Board (NMB) announced that it will hold a public hearing on June 19, 2012, and invited interested persons to share their views on its proposed rule changes relating to the amendments to the Railway Labor Act (RLA) in the Federal Aviation Administration Modernization and Reform Act of 2012. On May 15, the NMB issued a Notice of Proposed Rulemaking (NPRM) to revise the Board's election rules to comply with these amendments, which went into effect on February 14, 2012. The proposed rule addresses the NMB's rulemaking authority, the procedure for run-off elections, and the showing of interest required for an unrepresented craft or class. One twist, however, is that the NMB appears to be proposing a change in its procedures in the event that there is a tie between those voting for and those voting against representation. Under current practice, in such a situation the union's application would be dismissed. The NMB has proposed to hold a run-off (or more appropriately a re-run) election in the event of a tie.
9th Circuit Agrees that Medical Marijuana Users Not Protected by ADA
In 2008, the California Supreme Court held in Ross v. Ragingwire Telecomm. Inc. that the California Fair Employment and Housing Act does not protect current users of medical marijuana.
EEOC Issues Guidance Regarding Employers' Consideration of Criminal Offenses
On April 25, 2012, the U.S. Equal Employment Opportunity Commission (the "EEOC") issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the "Guidance"). The Guidance is the EEOC's first formal policy statement on this topic in 20 years, and the first since the 1991 Civil Rights Act codified Title VII's employment discrimination disparate impact analysis. The development is particularly timely, as the proliferation of online databases now makes it easier than ever for employers to learn an individual's criminal record history.
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