Total Articles: 67
Employment law cornucopia - happy Thanksgiving!
A cornucopia of random employment law issues for your long weekend.
The Employment Law Authority (October 2011)
NLRB Imposes New Posting Requirement
Recent Developments From The OFCCP - Federal Contractors Beware
Agencies Sign Misclassification Memorandum
NLRB Hands Down Union-Friendly Decisions
Court Rejects Claim Of Insufficient Notice In ERISA Suit
New Enforcement Procedures For Investigating Workplace Violence
New Supreme Court Term Promises a Range of Labor and Employment Cases
The U.S. Supreme Court opened its 2011-2012 term this Monday. Although the Court may not issue as many landmark labor and employment decisions as it did last term—such as Dukes v. Wal-Mart—it is likely to hear a full complement of cases with significant implications for employers. The Court has already selected several labor and employment cases that it will hear this term, including the following:
Employers Can Discriminate!
For some employees who can't figure out why they are not getting that promotion, the answer could be as simple as looking in the mirror. Grooming and personal appearance are playing an ever-increasing role in workplace raise and promotion decisions. A recent CareerBuilder.com survey listed the following as the top reasons that would make an employer less likely to offer an employee a promotion:
First Monday in October - Ho Hum for L&E Types
Tomorrow marks the start of the Supreme Court's new term, and at least for private sector Labor and Employment types, there's not a lot to get excited about. (From the employer side of the docket at least the Court has not taken a retaliation case!)
11 Employer FAQs (No. 7): Should the "ugly" be protected from discrimination?
OK, I admit it. This was not a "frequently asked question" until recently, after the New York Times ran a piece by a University of Texas economist who argued that the anti-discrimination laws should protect ugly people.
U.S. SUPREME COURT EMPLOYMENT LAW DECISIONS 2010-2011
The United States Supreme Court decided several important cases affecting employers during its October 2010 Term. The decisions addressed the scope of liability for retaliation and discrimination, arbitration, class actions, and benefits. Below is a summary of the Court’s major decisions in chronological order.
To guarantee an employment lawsuit, just follow these five "worst practices"
It's not just London that is suffering from unrest these days -- there is reason to believe that American workplaces are far from heaven, too, even for those who are still fortunate enough to be employed.
July 2011 Management Update
July 2011 Management Update
Employment Law Roundup: Facebook wage rant, EEOC scores again, FMLA bereavement leave, gender gap narrows, Menorah House and the Sabbath, mini-horse as accommodation
Odds and ends from the employment law world this week.
A Review of the Supreme Court’s 2010 – 2011 Term
As the United States Supreme Court’s 2010-2011 term drew to a close, commentators observed several trends in its holdings. In particular, cases involving the First Amendment dominated the term, and the Court imposed substantial barriers to class actions. These latter decisions, in particular, hold major implications for employers.
Employment Law Update (NY) Complete Program Materials
Employment Law Update (NY) Complete Program Materials - June 14, 2011 is attached below. Practical Advice for In-House Counsel and Human Resource Professionals
Labor and Employment Law Newsletter
Ignorance Is Not Bliss: Knowing When to Issue a Litigation Hold; Sup. Ct. Sharpens Claws of the "Cat's Paw" Theory; Wage & Hour Developments in the Hospitality & Service Industry-Simple Steps Employers Can Take to Minimize the Risk of Preventable Lawsuits; Sup. Ct. Continues Expansive Interpretation of Retaliation Claims; IL Civil Union Law Requires Employer Action; NY Dept. of Labor Issues Guidance Concerning the NY Wage Theft Prevention Act; Recent Vedder Price Accomplishments
The Employment Law Authority (April 2011).
U.S. Supreme Court Rules On "Cat's Paw" Theory; Changing The Game: OFCCP And Active Case Enforcement; DHS Launches New E-Verify Self Check Tool; HIV And The Workplace: An Update For Employers; OSHA Issues New Enforcement Directive On Personal Protective Equipment; USERRA Does Not Provide A Claim For Hostile Work Environment; Ninth Circuit Rules Pharmaceutical Sales Reps Are Exempt Under FLSA.
Systemic Discrimination in a Nutshell
"It is imperative that the [Equal Employment Opportunity Commission] make the identification, investigation, and litigation of systemic discrimination a top priority." Thus read the recommendation of the Equal Employment Opportunity Commission’s ("EEOC") Systemic Task Force. While the EEOC always pursued claims of systemic discrimination on some level, in recent years the EEOC has focused on systemic discrimination in a more concerted way. The result: a rising number of investigations where the EEOC seeks to uncover "pattern or practice" discrimination or combat broad-based discrimination. Increased budget appropriations for the EEOC portend an even further increase in such efforts.
Management Update (March 2011).
Ninth Circuit Finds Pharmaceutical Sales Reps Not Entitled to Overtime Pay; Court Challenges to Health Care Reform Law; NLRB Finds "Preemptive Strike" Discharge Illegal.
Two Recent Supreme Court Holdings Split The Difference For Employees/Employers
Within the past week, the United States Supreme Court has issued two rare, unanimous decisions in the employment law realm. In the first, NASA v. Nelson, the Supreme Court held that employers have great leeway in probing into their workers' past behavior, provided such inquiries are job-related and resulting information is kept confidential. In the second, Thompson v. North American Stainless LP, the Supreme Court handed employees a significant victory in ruling that an employer could be held liable for retaliating against a close colleague of an individual who complains of unlawful harassment or discrimination.
Supreme Court Rejects Six Employment Cases, Still Has Full Docket on Tap
Earlier this week, the U.S. Supreme Court declined to review six labor and employment law cases which had been presented. The Court showed no favoritism, denying petitions for certiorari on cases coming out of U.S. Courts of Appeal for the Second, Third, Fifth, Eighth, Ninth, and Federal Circuits and covering substantive and procedural issues, including age claims, disability claims, retaliation, and due process, among others.
Supreme Court Rejects Six Employment Cases, Still Has Full Docket on Tap
Earlier this week, the U.S. Supreme Court declined to review six labor and employment law cases which had been presented. The Court showed no favoritism, denying petitions for certiorari on cases coming out of U.S. Courts of Appeal for the Second, Third, Fifth, Eighth, Ninth, and Federal Circuits and covering substantive and procedural issues, including age claims, disability claims, retaliation, and due process, among others.
AN EMPLOYMENT LAWYER'S HOLIDAY WISH LIST.
As 2010 comes to a close, we lawyers send good wishes to our clients, co-workers, and even our adversaries. Well, most of them, anyway. The new year brings the chance for a fresh start, change, new challenges, and the promise of a different world.
Don't Believe Everything You See On TV.
While many of you have a wealth of experience with litigation – probably more than you want – other readers have been fortunate enough to go years or even decades in business without being part of a lawsuit. Some have recently moved into a new position that puts you front-and-center for lawsuit-related discussions. Those who are new to lawsuits are frequently surprised by the reality of the law, our court system, and litigation in general.
Pattern and Practice Cases: EEOC Renews Focus on Systemic Discrimination
With an increased budget and additional investigative resources, the Equal Employment Opportunity Commission (EEOC) has announced its renewed focus on combating systemic discrimination and its intent to pursue a greater number of large-scale enforcement actions through FY 2012 where it seeks relief for numerous applicants or employees. Known as a “pattern and practice” case, this type of litigation poses the greatest exposure and risk to employers through challenges to policies and practices in the workplace that allegedly have a discriminatory impact on a protected class and relies heavily on statistical evidence. In this past year, there has been a spate of EEOC enforcement actions seeking relief on a class basis. Now more than ever, it is imperative for employers to be cognizant of these large-scale cases, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.
Beauty And The Bias
The controversy over discrimination in employment based on appearance is heating up again. Newsweek recently ran a special report entitled "The Beauty Advantage" that included a survey of hiring managers, 57% of whom said qualified but unattractive candidates will have a harder time landing a job. More than half of the managers in the survey advised job applicants to invest time and money in "making sure they look attractive" instead of on polishing a resume. In addition, Stanford law professor Deborah Rhode has authored a new book entitled The Beauty Bias that decries appearance discrimination and urges legal reforms to prohibit it.
Employer's continuing efforts to resolve issues complained of by employee supports dismissal of discrimination complaint.
In an unpublished opinion, the 3d U.S. Circuit Court of Appeals has upheld a lower court’s decision to dismiss an employee’s claims of discrimination, hostile work environment, and retaliation, based largely upon the “extraordinary lengths” to which the employer went to investigate the issues complained of by the employee.
Supreme Court Watch: Part 3.
The U.S. Supreme Court will hear oral arguments on several important employment-law cases this term. Last week, we posted about the upcoming Kasten v. Saint-Gobain Performance Plastics Corp., in which the Court will address the requirements for an employee who claims retaliation based on the FLSA. And, on Monday, we posted about Staub v. Proctor Hospital, in which the Court will address the cat's-paw theory in the USERRA context.
A New Sheriff in Town.
Now that we are nearly two years into President Barack Obama’s administration, it is a good time to step back and consider where there have been substantive changes to employment law, and where there may be additional changes coming. Whether you view the administration’s policies as good, bad or otherwise, one thing is clear. There is a new sheriff in town to enforce workplace laws.
Supreme Court Watch: Part 1
The U.S. Supreme Court opened its new term earlier this week. For the first time, three of the justices are women, creating an historic moment for the Court. Employers anticipate several important decisions coming from the cases being heard this term, as well. In this first part in a series, we'll post about three of the most interesting employment-law cases scheduled for oral argument this Fall.
‘Beauty Bias' In the Workplace Is Not Illegal
The controversy over discrimination in employment based on appearance is heating up again. Newsweek recently ran a special report entitled "The Beauty Advantage" that included a survey of hiring managers, 57 percent of whom said qualified but unattractive candidates will have a harder time landing a job. More than half of the managers in the survey advised job applicants to invest time and money in "making sure they look attractive" instead of on polishing a resume. In addition, Stanford law professor Deborah Rhode has authored a new book entitled The Beauty Bias that decries appearance discrimination and urges legal reforms to prohibit it.
U.S. SUPREME COURT EMPLOYMENT LAW DECISIONS: A REVIEW.
Our last column summarized key employment law cases decided recently by the California Supreme Court. The United States Supreme Court has also issued important decisions during its October 2009 Term, of which employers should take notice. The Supreme Court’s recent opinions address a variety of topics, including: pre-employment testing, attorneys’ fees, employee privacy, and employment arbitration. Several important employment law cases are on the Supreme Court’ docket for the 2010 Term beginning in October. We summarize below the recently decided cases and those that remain pending.
A Review of the Supreme Court’s 2009 -- 2010 Term.
As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court. Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice. While his majority percentage may suggest to some a willingness to compromise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term. Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.
How Will Kagan Treat Employers?
Over the past several years, we have relied upon the tried-and-true method of asking our Magic Eight Ball to help predict how newly-nominated Supreme Court Justices would treat employers once seated on the bench. In retrospect, the Magic Eight Ball turned out to be a fairly accurate predictor in examining Justices Alito and Sotomayor and their handling of labor and employment law matters.
Patient’s or Customer’s Preferences May Not Be A Defense to Discrimination Claims.
The U.S. Court of Appeals for the Seventh Circuit recently held that a nursing home maintained a racially hostile working environment by accommodating its residents’ requests to be treated by white-only personnel and by terminating the plaintiff, a black nursing assistant, for an alleged workplace infraction. Chaney v. Plainfield Health Center
A Review of the Supreme Court’s 2009 – 2010 Term.
As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court. Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice. While his majority percentage may suggest to some a willingness to comprise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term. Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.
Summer Supreme Court Match-Up: Employees Are In the Lead.
The Supreme Court has decided several employer/employee match-ups on matters as diverse as Title VII, ERISA, and the National Labor Relations Act. The winner thus far? Employees, with a clear victory in two of the cases (and a draw in the third).
Trifecta of Employment Law Cases.
Jon Hyman of the Ohio Employment Law Blog writes a weekly post in which he rounds up some of the most important stories from around the web. This week, I’m going to follow Jon’s lead with a “best-of-the-web” edition of my own. There is so much happening in the world of employment law and human resources, it’s hard to narrow down my top choices for the must-reads. But I’ll do my best.
Management Update (April 2010).
Supreme Court Hears Oral Arguments in Text Messaging Case; Supreme Court to Determine "Cat's Paw" Theory in USERRA Case; Supreme Court Hears Oral Argument on Who Should Decide Whether Arbitration Agreement is Unconscionable; Court Emphasizes That Evidence of Training Is a Must; Ford & Harrison Provides Guidance on Health Care Reform Law; Third Extension of COBRA Premium Subsidy Extends Availability Through May 31, 2010.
Executive Labor Summary (January 2010).
Becker nomination: dead, or only sleeping? Partial lockout OK – if not unlawfully motivated.
Union activity, “journalistic integrity” don’t trump newspaper publisher’s First Amendment rights.
Shift leaders are not supervisors, court says.
2009 New Federal Labor & Employment Laws.
In a move that could lead to a significant increase in employment litigation, on January 29th President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law. Notably, it was the first act that he signed into law upon taking office. The Act negates a 2007 U.S. Supreme Court decision relating to the statute of limitations (deadline to sue) for pay discrimination claims. The case was titled Ledbetter v. Goodyear Tire & Rubber Co., Inc.
2009 U.S. Supreme Court Labor & Employment Law Cases.
Nineteen city firefighters from the City of New Haven, Connecticut alleged that the city discriminated against them with regard to promotions. Seventeen of the firefighters were white and two of were Hispanic. They had passed the test for promotions to management. However, there was a public outcry when it became known that none of the black firefighters who passed the exam had achieved a high enough score to be considered for promotion. The City of New Haven invalidated the test results. City officials stated that they feared a lawsuit over the test’s disparate impact on a protected minority. The complainants claimed they were denied the promotions because of their race.
Supreme Court to Hear Five Labor and Employment Cases.
The United States Supreme
Court began its latest term on
October 5, with fi ve cases on
its docket that will directly
impact employers. Two of the
cases deal with labor
arbitration; a third deals with
the degree of deference due an
ERISA plan administrator; a
fourth addresses the amount of
time a plaintiff has to fi le a
discrimination charge; and the
fi nal one involves allegations of
whistle-blowing and the
attorney-client privilege.
U.S. Supreme Court Weighs In on Employment Law Developments.
Employers and their attorneys have been hard-pressed to keep up with rapid changes and developments in employment law in 2009. The U.S. Supreme Court has, for its part, issued a number of important decisions in 2009 that will affect the administration and direction of discrimination challenges and lawsuits. The decisions are discussed below.
Victory Is Sweetest When You've Known Defeat.
Good news for employers this year! Well . . . at least as compared to last year's Supreme Court term. The majority of the employment cases decided by the Court this term can be considered a victory for employers, and even one of the decisions siding with employees is not all bad. So, after losing all but four of the eleven employment decisions decided last year, employers can finally breathe a welcome sigh of relief. As discussed below, employers can claim victory in six cases, while only accepting defeat in one case and considering another case to be a mixed result.
Supreme Court Update: Three Recent Decisions Affect Employers (pdf).
Supreme Court Update: Three Recent Decisions Affect Employers.
UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2008-2009.
The United States Supreme Court decided several significant employment law cases during the 2008 Term. The Court’s opinions addressed the validity of service fees charged by unions to nonmembers, the scope of Title VII’s anti-retaliation protections, spousal rights under ERISA benefit plans, waivers of Age Discrimination in Employment Act (ADEA) claims in collective bargaining agreements, retroactivity of the Pregnancy Discrimination Act (PDA), and an employee’s burden to prove age discrimination under the ADEA even when evidence exists that age was a motivating factor in the employer’s decision. There currently is one case on the docket for next Term, summarized below. (The Court may add more cases to the docket as the new Term approaches in October 2009).
What's After EFCA? The Rest Of The Agenda!
Shock and awe! When Congress passed the Lilly Ledbetter Fair Pay Act on January 29, 2009, during the first week of the 111th Congress (without any committee action, little floor debate, and no amendments), and President Barack Obama quickly signed the bill into law (P.L. 111-2), it became shockingly clear to the business community how fast "change" could come to workplace law.
Obama Nominates Sotomayor For Vacancy On Supreme Court.
President Barack Obama announced today that his nominee to fill the position on the U.S. Supreme Court being vacated by Justice David Souter will be Sonia Sotomayor. Judge Sotomayor is currently a judge on the U.S. Court of Appeals for the Second Circuit, which hears appeals from federal district courts in the states of Connecticut, New York, and Vermont.
Bill Impacting Pay Discrimination Claims Sent to Senate.
The U.S. House of Representatives has passed legislation that could significantly impact employers, if the legislation becomes law. The Lilly Ledbetter Fair Pay Act is aimed at overturning the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which limited the time frame for bringing pay discrimination claims. The Fair Paycheck Act would enhance remedies for sex-based discrimination and make it easier for plaintiffs to establish an Equal Pay Act (EPA) violation. The two bills have been combined (H.R. 11) and sent to the Senate for consideration. To view the text of the legislation, click here, type H.R. 11 in the search box and select search by bill number.
2009 Federal Labor & Employment Law Legislative and Regulatory Update.
Below is a summary of significant new 2009 federal laws and regulations relevant to labor and employment law issues.
2008 U.S. Supreme Court Labor and Employment Law Cases.
A review of significant 2008 U.S. Supreme Court decisions in the area of labor and employment law. The Court addressed major issues related to Federal Arbitration Act preemption, Section 1981 claims, ADEA affirmative defenses, and more.
Management Update
Avoiding Religious Discrimination Claims During the Approaching Holiday Season; Quon v. Arch Wireless Operating Co., Inc.: New Protections For Employee Privacy; Practical Tips For Being An Effective Deposition Witness.
U.S. Supreme Court - New Supreme Court Term Set To Open Justices To Review Several Key Employment Law Cases.
In early October, the U.S. Supreme Court will begin hearing oral argument for the 2008-2009 term. There are currently four labor and employment related cases on the docket - the most notable involving the scope of the anti-retaliation provision contained in Title VII of the Civil Rights Act. The justices also have agreed to decide whether an arbitration provision in a union contract bars an employee from suing for age bias.
The Good, The Bad, and The Ugly: Looking Back at the 2007-2008 Supreme Court Term.
The recently-concluded U.S. Supreme Court term offered employers several reasons to cheer but even more reasons to jeer. Of the 11 cases decided by the Court between October 2007 and June 2008, only 4 of them could be considered as victories for employers; many of them proved to be real setbacks for management. Although most Supreme Court watchers would label the current Supreme Court as conservative and business-friendly, a review of these 11 decisions shows that the Court is anything but.
Election of Remedies Provision Does not Violate Title VII.
Creating a split among the federal appeals courts, the Second Circuit recently held that including an election of remedies provision in a collective bargaining agreement (CBA) is not unlawful retaliation in violation of Title VII. See Richardson v. Commission on Human Rights and Opportunities (July 7, 2008). The clause at issue in this case provided that disputes over unlawful discrimination would be subject to the CBA’s grievance procedure but would not be arbitrable if the employee filed a discrimination charge with the Commission on Human Rights and Opportunities (CHRO) (the state civil rights agency, who was also the employer in this case).
United States Supreme Court Employment Law Decisions 2007-2008.
The United States Supreme Court decided several significant employment law cases during the 2007 Term. The Court’s opinions ranged from the validity of administrative charges filed with the Equal Employment Opportunity Commission, to the scope of the Age Discrimination in Employment Act, as well as to anti-retaliation provisions. There currently are four cases on the docket for next Term, each of which is summarized below. (The Court may add more cases to the docket as the new Term approaches in October 2007).
Keeping an Eye on Labor and Employment Legislation.
In a previous issue we took a look at several pending laws that would drastically change the labor and employment scene ("Cute Titles for Bad Laws" by John Zenor, Labor Letter, May 2008). This month we'll review a few more pieces of pending legislation.
The Ministerial Exception: How Far Is Too Far?
Two recent court decisions have further defined the contours of the "ministerial exception," which prohibits courts from addressing employment claims brought against religious organizations when the decisions were based on the organization's religious principals or practices. Archdiocese of Washington v. Moersen demonstrates that this exception has its limits; Klouda v. Southwestern Baptist Theological Seminary shows just how far the exception can be applied.
U.S. Supreme Court Update.
The Supreme Court has issued several employment related decisions already this year.
Surviving Discrimination Claims (Video).
Surviving Discrimination Claims.
Key Employment Cases On High Court Docket.
The U.S. Supreme Court's 2007-2008 term is currently well underway. Several of the key pending labor and employment cases are summarized below.
Using The Statutory "Offer To Compromise" to Obtain Favorable Settlements.
Like all civil litigation, most employment law cases are resolved before trial. However, the plaintiff rarely just gives up.
Caregiver Discrimination: A New Angle on Sex, Race, and Disability Discrimination.
The Equal Employment Opportunity Commission (EEOC) recently issued written guidance on its approach to sex, race, and disability discrimination claims that involve caregivers. Although the guidance does not create a new protected class for caregivers, it sets forth numerous examples of employer conduct toward pregnant employees, women of color, and male and female caregivers that the EEOC will treat as sex, race, and/or disability discrimination. The guidance serves as a warning to employers to prevent bias against caregivers and indicates the potential legal consequences if they do not.
U.S. Supreme Court Wraps Up Term With Three Cases.
The U.S. Supreme Court recently concluded its 2006-2007 term. In the surge of decisions issued in the last few weeks of the term, the justices issued three decisions of interest for employers.
United States Supreme Court Employment Law Decisions 2006-2007.
The United States Supreme Court decided several significant employment law cases during the 2006 Term. The Court’s opinions address a number of topics, from the statute of limitations in cases alleging discriminatory pay practices, to the exempt status of home care aides under U.S. Department of Labor regulations. There presently are three important cases on the docket for next Term, summarized below. The Court may add more cases to the docket as the new Term approaches in October 2007).
New Supreme Court term opens with few employment cases (pdf).
But justices will review key pay discrimination case under Title VII.
Does "Hidden Bias" Lurk in Your Workplace? (pdf).
Many employers today proudly describe themselves as “equal opportunity employers” and provide extensive diversity and antidiscrimination training for managers and supervisors to eliminate the potential for discriminatory decision making.
2005 Seventh Circuit Review: Key Employment Law Decisions (pdf).
It is with great pleasure that we present to you the 2005 Seventh
Circuit Review: Key Employment Law Decisions – a summary of key
employment cases decided by the Seventh Circuit Court of Appeals in
2005 prepared by Ogletree Deakins' Indianapolis and Chicago offices.
The Seventh Circuit covers Indiana, Illinois and Wisconsin. The
Review summarizes select Seventh Circuit cases impacting day-to-day
employment decisions involving your organization. We hope you find
the Review helpful in your work.
New Supreme Court Term Opens With Five Employment Cases (pdf).
The U.S. Supreme Court recently
began its 2005-2006 term with a new
lineup set to hear the 48 cases currently
on its docket. The late William
Rehnquist, who served as Chief Justice
on the high court since 1994, was replaced
by John Roberts. Justice Sandra
Day O’Connor, who on July 1 announced
her decision to retire, will step down
after her successor is confirmed.
