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Photo of Employment Law Observer Tom H. Luetkemeyer
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tluetkemeyer@hinshawlaw.com
312-704-3056
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Tom Luetkemeyer concentrates his practice in the areas of labor and employment law and corporate health care law. Mr. Luetkemeyer represents …

Showing 7 posts by Tom H. Luetkemeyer.

Who Invited You? OSHA Reverses Itself on Fairfax Memo

OSHA recently announced it will no longer bring union representatives to inspections of non-unionized workplaces.  As a result, barring a designation by an employee (which I'll discuss further below), non-unionized employers no longer have reason to fear that an OSHA compliance officer will appear at the door accompanied by a union representative on an inspection or walk-around. More ›

Management Rights Clause Does Not Give Management Right to Skip Bargaining Over Non-Compete and Confidentiality Agreement D.C. Court of Appeals Says

In Minteq v. NLRA, the United States Court of Appeals for the District of Columbia Circuit held an employer committed an unfair labor practice under Section 8 (a)(5) by failing to notify and bargain with a union over its requirement that new employees sign a non-compete and confidentiality agreement as a condition of employment. More ›

Peering into Hinshaw’s Crystal Ball: How the Trump Administration May Affect Labor and Employment Landscape

With the election of Donald Trump and transition to a Republican administration looming, employers are scrambling to predict what impact Trump will have on labor and employment policy and enforcement initiatives. What employers can expect in the first 12 months of a Trump Administration is unclear, but there likely will be change in the following areas: More ›

TILTING THE BATTLEFIELD: NLRB MAKES IT EASIER FOR UNIONS TO CHALLENGE USE OF PERMANENT REPLACEMENTS

The National Labor Relations Board (“Board”) recently denied review of its ruling in American Baptist Homes. That ruling upended the decades-old bright line test that an “independent unlawful purpose” is established only when an employer’s hiring of permanent replacements is unrelated to, or extrinsic to, the strike.  Specifically, the Board ruled the General Counsel is not required to show an employer was motivated by an unlawful purpose extrinsic to the strike; he need only show the hiring of permanent replacements was “motivated by a purpose prohibited by the Act.” What constitutes a “prohibited purpose” is open to interpretation, and American Baptist Homes strongly signals employers could be exposed to unfair labor practice charges if there is any allegation that the use of permanent replacements is motivated by an intent to interfere with the exercise of Section 7 rights. More ›

The Seventh Circuit Clarifies Evidentiary Standards in Employment Discrimination Cases

In Ortiz v. Werner Enterprises, Inc., the Seventh Circuit stated in very clear terms that lower courts and parties to discrimination actions should not divide evidence into direct and circumstantial buckets under the familiar direct and indirect methods of proving discrimination under Title VII of the Civil Rights Act of 1964. The Court’s instruction should apply with equal force to claims brought under the Age Discrimination and Employment Act and the Americans with Disabilities Act. More ›

In new Guidance, DOL gets Aggressive on "Joint Employment"

By issuing a new interpretative document (bearing the catchy title “Administrator’s Interpretation No. 2016-1”), the U.S. Department of Labor's Wage and Hour Division has attempted to clarify the concept of “joint employment” under the Fair Labor Standards Act.  And make no mistake, from an agency enforcement perspective, the joint employer concept has been expanded. More ›

Despite "Incredibly Suspicious" Timing, Retaliation Claim Fails

A surgical technologist at a hospital was having performance problems. The technologist's supervisor contacted her by phone following a complaint from a physician that the technologist had failed to perform a number of critical tasks that ultimately delayed a surgery. During the call, the technologist became angry and insubordinate. Following that call, the supervisor contacted human resources to discuss terminating the technologist, and then communicated his decision to others, but not to the technician. The following day, the technologist contacted human resources to complain of racial harassment and discrimination. Forty-five minutes later, the supervisor contacted the technologist via phone and informed her of her termination. While the court found the timing "incredibly suspicious," it ultimately ruled that the evidence that the decision had been made prior to the technologist's complaint precluded a finding that her complaint was the "but for" basis for her termination. This case demonstrates the importance of carefully documenting the termination decision-making process.

For more information read Wright v. St. Vincent Health System, No. 12-3162 (8th Cir. Sep. 18, 2013).

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