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No Class Action Waivers in Arbitration Agreements, Says NLRB

The National Labor Relations Board (NLRB) has decided to follow its own oft-criticized 2012 decision in D.R. Horton, holding that arbitration agreements barring class action lawsuits about working conditions, which are signed by employees as a condition of employment, are unlawful under the National Labor Relations Act. More ›

Delivery Change: UPS Announces Modification of Challenged Pregnancy Accommodation Policy Just Weeks Ahead of Supreme Court Arguments

In July of this year, we wrote about new EEOC guidance on the accommodation of pregnant employees under both the Americans with Disabilities Act (ADA) and Pregnancy Discrimination Act (PDA).  One of the primary issues addressed in the EEOC's guidance was the accommodation of pregnant employees under the PDA on the same basis as disabled employees; in other words, whether a non-disabled pregnant employee can claim gender discrimination if he or she is not provided the same accommodations as a disabled employee.  The EEOC stated that she can, equating any policy that denies such accommodation to intentional gender discrimination. (As we wrote at the time, one dissenting Commission member referred to this controversial new position as “me too” coverage – “whatever a person with a disability under the ADA is entitled to, I’m entitled too, to.”)  

As we also noted in July, however, this very same issue will come before the U.S. Supreme Court this term, and a last-minute development now gives employers even more reason to pay attention. More ›

NLRB Finds That Employer Could Rescind Offers After Workers Discussed Detailed Insubordination Plans on Facebook

In a (rare) positive social media decision for employers, the NLRB ruled on October 28th in Richmond District Neighborhood Center, Case 20–CA–091748 (Oct. 28, 2014), that two employees who discussed their insubordination plans in great detail in a Facebook “comment thread” lost the National Labor Relations Act’s protections. The discussion, the Board held, was not "protected, concerted activity," and the employees therefore could not file an unfair labor practice charge after they were not rehired as a result of their comments.  More ›

Eighth Circuit: Doctor Is Unable to Maintain Employment Claims Due to Determination of Independent Contractor Status

From 1991 until 2011, Larry Alexander worked as a pathologist for Avera St. Luke's Hospital in South Dakota. Under the terms of his contract, Alexander was an independent contractor free from control of Avera. Alexander paid his own taxes, maintained his own malpractice insurance and paid for his own professional licenses. Avera required him to have medical privileges at its facility, billed patients on his behalf, and paid Alexander in equal monthly payments for his services. More ›

Fifth Circuit Hands Down Mixed Ruling on Validity of Later-Added Arbitration Clause

Employers must always be careful when adding an arbitration clause to an existing employment agreement.  The amendment process becomes even trickier when the employment relationship is governed by multiple documents.That was the situation in Sharpe v. AmeriPlan, where the Fifth Circuit analyzed whether an arbitration provision that an employer added to one contract could be harmonized with provisions in two other contracts that defined the employment relationship.

The Fifth Circuit faced two fundamental issues: (1) whether the later-added arbitration requirement was compatible with the forum selection clause contained in another document, and (2) whether the arbitration clause could be reconciled with provisions in other contracts requiring that disputes first be submitted to non-binding mediation.  The court ultimately held that the arbitration requirement could be harmonized with the forum selection clause, but not with the mediation requirement under these facts.  The case provides potentially important guidance for employers to follow when considering whether they can lawfully add an arbitration provision to an existing agreement. More ›

Employer Not Obligated to Substitute Paid Disability Leave for Unpaid Leave under Wisconsin FMLA if Employee Does Not Qualify as Disabled Under Plan

Wisconsin's Family Medical Leave Act (WFMLA) requires that employers allow their employees six weeks of unpaid leave following "[t]he birth of an employee's natural child." Wis. Stat. §103.10(3). The Act's substitution provision requires employers to allow an employee to substitute "paid or unpaid leave of any other type provided by the employer" for the unpaid leave provided by the statute. Id. §103.10(5)(b).  In Sherfel v. Nelson, the Plaintiff, Joan Sherfel, exhausted her short-term disability benefit following the birth of her child. She then requested and was provided additional leave under the WFMLA. When Ms. Sherfel asked to substitute paid short-term disability leave for the unpaid WFMLA leave her employer refused because she was no longer short-term disabled as defined by the plan.  More ›

Seventh Circuit Upholds Indiana's Right to Work Act

In 2012, Indiana enacted its Right to Work Act, which prohibits, among other practices, making the payment of union dues a condition of getting or keeping a job. The Act also bars the practice of requiring an individual to join a union as a condition of employment. Three weeks after its enactment, members and officers of the International Union of Operating Engineers, Local 150, AFL-CIO (the "Union") brought suit in federal district court against Indiana's Governor, Attorney General, and Commissioner of the Department of Labor alleging that the National Labor Relations Act preempted the Right to Work Act, and further, that the Act violated the United States Constitution and the Indiana Constitution. The Indiana government defendants moved to dismiss those claims, and the federal district court granted dismissal of the preemption and constitutional violation claims. The Union appealed the dismissal. More ›

Eleventh Circuit: Exposure to Subjectively Unpleasant Weather Conditions and Deprivation of Office Amenities Is Not Adverse Employment Action

Henry McCone worked for several years as a non-driving customer service associate. His job duties involved opening received mail and preparing outgoing mail. Pitney Bowes transferred him to a position requiring him to drive correspondence and files between sites in the Orlando area. The result was McCone had to endure unfavorable weather conditions and lost regular access to office amenities, such as air conditioning, restrooms, a microwave oven, and a refrigerator. Two women who also served as customer service associates were neither trained nor required to work as a driver. More ›

Security Guard Terminated After Incident with Psychiatric Patient Cannot Advance Discrimination Claims

The Sixth Circuit recently upheld a Michigan district court's decision to dismiss a 52-year-old African-American female security guard's age, race, and sex discrimination claims arising from her discharge following an incident with a combative psychiatric patient at the hospital where she worked. More ›

New California Law Imposes Liability On Companies Where Labor Contractors Fail To Pay Wages Or Provide Workers’ Compensation Insurance

On Sunday, September 28, 2014, California Governor Jerry Brown signed into law AB 1897 (D-Hernandez), which imposes liability on companies who use subcontracted temporary labor if the temp company fails to pay wages or provide valid workers’ compensation coverage. The bill applies where a temp company supplies workers to a client employer to perform labor within the client employer’s usual course of business. More ›