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Showing 15 posts from January 2013.

NLRB Recess Appointments are Invalid

The National Labor Relations Board (NLRB) is comprised of five members appointed by the President, with the advice and consent of the Senate. Traditionally, Presidents have appointed three members from their own political party and two members from the opposition party. The Constitution authorizes the President to make “recess” appointments when the Senate is not in session. More ›

Federal Appeals Court Strikes down President Obama’s NLRB Appointments

In a decision that could have an enormous impact on employers, a federal appeals court has ruled that President Barrack Obama violated the Constitution when he appointed three members to the National Labor Relations Board (“NLRB”) without Senate approval.

The unanimous ruling from the three-member panel of the Court of Appeals for the District of Columbia Circuit could invalidate hundreds of NLRB regulations and decisions issued since January 4, 2012. President Obama is expected to appeal the ruling to the Supreme Court. More ›

California Supreme Court: Continuous Accrual Principles Apply to 17200 Claims

Today the California Supreme Court issued a long-awaited ruling in the Aryeh case regarding the application of the common law theory of continuous accrual to actions under the unfair competition law (Bus. & Prof. Code section 17200 et seq.) Though the case does not expressly address labor or employment issues, the case is nevertheless important for California employers, as the majority of employment litigation claims made are coupled with a 17200 claim.  More ›

11th Circuit Affirms Summary Judgment in ADEA case where Plaintiff used "Cat’s Paw" Theory

Not all well-designed plans succeed. In the area of employment terminations, however, the practice of having termination decisions made independently by someone other than the employee's immediate supervisor increases the odds of obtaining summary judgment and avoiding trial. More ›

Seventh Circuit: Failure to Object to EEOC Subpoena Within five Business days Waives any Future Objection

Addressing an issue of first impression for a federal appellate court, the Seventh Circuit Court of Appeals has ruled that, in order to object to an EEOC subpoena based on irrelevance or overbreadth, an employer must file a petition within five business days of first receiving the subpoena – if no such timely petition is filed, any later attempts to avoid responding are waived. This decision eliminates what had previously been an alternative theory relied upon by some employers: that an initial failure to file an objecting petition could be remedied by filing a motion to dismiss in federal court when the EEOC seeks to enforce the subpoena. Going forward, therefore, employers that receive an EEOC subpoena which they find to be overly burdensome or irrelevant must file a petition within the 5-day period set forth in EEOC regulations. If that opportunity is missed, any future efforts by the employer to avoid responding will be denied. More ›

EEOC to Proceed With Class Action Disability Discrimination case Against UPS

In a ruling that could negatively impact employers, an Illinois federal judge has allowed the Equal Employment Opportunity Commission (“EEOC”) to proceed with a class action disability discrimination case against United Parcel Service, Inc. (“UPS”) even though the EEOC has identified only two class members.

The January 11, 2013, ruling by District Judge Robert M. Dow, reverses two prior dismissals of the case, EEOC v. United Parcel Service, Inc., Northern District of Illinois, No. 09-cv-05291.

Judge Dow previously held that the EEOC’s complaint and amended complaint were defective, in part, because they failed to allege adequate factual information. The court changed course unexpectedly. More ›

Mandatory bus Rides to Plant Deemed not Compensable work time Under FLSA

An engineering and construction services contractor initially offered its laborers the option of parking at a plant parking lot or participating in a park and ride program which would take the laborers directly to the plant, but then later required all employees to participate in mandatory park and ride. Prior to boarding the buses, laborers scanned their plant badge. While on the buses, the laborers were subject to the contractor's rules regarding use of cell phones, tobacco, alcohol, weapons, etc. Once they arrived at the plant, laborers would scan their badges and proceed to their work station. At the end of their shift, they boarded the buses and returned to the lot. The daily total travel time varied from 40-60 minutes.   More ›

Eighth Circuit Revives Deaf Lifeguard’s Disability Claim

A deaf individual who could detect noises through the use of a cochlear implant and who used American Sign Language (ASL) to communicate successfully completed two lifeguard training programs through the county. Though he had an ASL interpreter to communicate verbal instructions, the interpreter did not assist him in executing lifesaving tasks. The individual applied for and was conditionally offered a lifeguard position subject to him passing a pre-employment physical. The doctor, however, determined that because the individual was deaf, he could not be a lifeguard, unless he was constantly accommodated. The county then undertook a job task analysis to determine whether the individual could perform the job with or without accommodation, and because it was uncertain whether the individual could safely work as a lifeguard by himself, the offer of employment was revoked. More ›

No Disability Discrimination Where Employee Cannot Competently Perform Job, Ninth Circuit Holds

In Lawler v. Montblac North American LLC, the plaintiff, Cynthia Lawler, a store manager at a boutique retail store, was diagnosed with psoriatic arthritis.  Lawler initiated the action after Defendant employer terminated her employment.

Lawler asserted four claims: (1) disability discrimination, (2) retaliation, (3) harassment, and (4) intentional infliction of emotional distress. The first three causes of action were brought under the California Fair Employment and Housing Act (“FEHA”).

The trial court granted summary judgment for Defendant as to all causes of action, and the Ninth Circuit affirmed. More ›

NLRB Permits Unions to Charge dues Objectors for Lobbying Expenses, and Seeks Further Briefing on “Germaneness” Standard

A former Union member filed an unfair labor practice charge alleging that the Union, which represents hospital employees, violated the National Labor Relations Act by its treatment of the former Union member and other employees who resigned their Union memberships and objected to paying dues that were unrelated to collective bargaining, contract administration, or grievance adjustment. More ›

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