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James Pirages has more than 30 years of experience representing management and employers in labor and employment matters. He handles investigations …

Showing 91 posts by James R. Pirages.

ADA Accommodations need not be job Related

An assistant attorney general for the Louisiana Department of Justice suffered from osteoarthritis of the knee, and requested that her employer provide her with a free on-site parking space as an accommodation. The employer refused, and the employee filed a claim under the Americans with Disabilities Act, claiming that the employer failed to provide her with a reasonable accommodation. The district court granted summary judgment to the employer, holding that the employee failed to explain how the parking space related to her ability to perform the essential functions of her job. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that there need not be a nexus between a requested accommodation and the essential functions of the requesting employee's job. In reaching this holding, the court focused on the language of the statute, as well as implementing regulations, and found no requirement that an accommodation be specifically linked to an employee's essential job duties. This case provides an important clarification of the accommodation process, and employers should be careful to fully evaluate all accommodation requests, even where there is no direct nexus between the requested accommodation and the requesting employee's job duties.

For more information read Feist v. Louisiana, No. 12-31065 (5th Cir. Sep. 16, 2013).

Second Circuit Holds FLSA Claims Subject to Class Action Waiver in Arbitration

An employee entered into an arbitration agreement with her employer when she was hired. The arbitration agreement required the employee to arbitrate any claims arising out of the Fair Labor Standards Act ("FLSA") as opposed to suing in court and required the employee to individually arbitrate FLSA claims instead of arbitrating as part of a class of employees. Despite those provisions in the arbitration agreement, the employee filed a lawsuit in federal court alleging that she was denied overtime pay in violation of the FLSA on behalf of herself and a class of other similarly-situated employees. The employer sought to compel arbitration and to dismiss the employee's claim due to the class-action wavier provision in the arbitration agreement. The employee asserted that the provision was unenforceable based on the "effective vindication" doctrine, which allows a court to invalidate agreements "that prevent the 'effective vindication' of a federal statutory right. Specifically, the employee asserted that the costs and fees associated with arbitrating her claim individually, rather than collectively, would dwarf her potential damages under the FLSA. The district court denied the employer's motion and found the arbitration agreement to be unenforceable.  More ›

Surprise Announcement from Treasury Department Delays Employer ‘Pay or Play’ Mandate for One Year

On July 2, 2013, the Treasury Department announced a one-year delay in several aspects of the Affordable Care Act that were to become effective on January 1, 2014. Among those items that are delayed are various employer and insurer reporting requirements under sections 6055 and 6056 of the Act, as well as the penalties imposed on large employers for failing to offer coverage. More ›

Supervisor who told Employee she was “too old” not Responsible for Firing

A 61 year-old employee's supervisor made age-related comments over a four month period. Later, while informing the employee that she was being fired, the supervisor suggested that the employee was "too old" for the job. The employee sued her former employer for age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and the state's civil rights act. The trial court dismissed the employee's lawsuit and the employee filed an appeal. More ›

Citing "Legal Uncertainty" Caused by Recess Appointments, House GOP Members Introduce Bill to Halt All NLRB Activity

On March 13, 2013, GOP members of the House Education and the Workforce Committee introduced a bill intended to put a halt to all actions by the National Labor Relations Board pending resolution of the confusion caused by a recent D.C. Circuit ruling that found President Obama's "recess appointment" of two of the three current NLRB members unconstitutional. Citing the "legal uncertainty" facing employers in the wake of the D.C. Circuit's decision in Noel Canning v. NLRB, the bill, titled the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120), would restrict the Board's authority to take any action until one of three events occurs: the U.S. Supreme Court rules on the constitutionality of the President's "recess appointments", a Board quorum is constitutionally confirmed, or the terms of the two "recess appointments" expire. 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 ›

Christian Employee Lacks Religious Accommodation Claim

The Seventh Circuit Court of Appeals recently addressed the issue of accommodations of employees' religious practices. More ›

Hospital’s Challenge to NLRB Health care rule Denied

A hospital challenged the National Labor Relations Board's (NLRB) certification of the union as the representative of a "wall to wall" bargaining unit of the hospital's professional and non-professional employees. The hospital claimed that the Health Care Rule (which limited the number and type of bargaining units allowed in an acute care setting) violated the National Labor Relations Act, Section 9(c)(5) because it endorsed the extent of a union's organization as the controlling factor in determining bargaining units. The D.C. Circuit Court of Appeals, however, rejected this argument, as well as the hospital's argument that the NLRB violated the Rule because the union was required to show, and the Board was required to find, extraordinary circumstances to join together a number of the Rule's designated units. The Court of Appeals, however, found that such a showing was not required under the Rule. More ›

Employee Failed to State Valid First Amendment Claim Because she was Speaking Pursuant to her Official Duties

A former school payroll employee reported incidences of fiscal irregularities to the superintendent, and later reported the same concerns to an outside consultant. Thereafter, she was suspended when it was discovered she falsified her employment application. In response, the employee wrote a personal letter to individual board members expressing frustration with how the superintendent responded to fiscal concerns, and that her suspension was in retaliation for reporting fiscal malfeasance. The superintendent recommended the employee’s termination, which the board approved, and the termination was later made official following a disciplinary hearing. More ›

Physician Partner may sue Physician’s Partnership for Retaliation Under FEHA

The California Court of Appeal recently determined that a physician partner could sue her partnership under the California Fair Employment and Housing Act (“FEHA”) for retaliation based upon that partner’s opposition to, and efforts to prevent, the sexual harassment of the partnership’s non-partner employees. The Court acknowledged that a partner cannot sue the partnership under the FEHA for alleged harassment or discrimination against the partner, or for retaliation for opposing harassment or discrimination against the partner. The Court further confirmed that a partner cannot sue her partnership for harassment, discrimination or retaliation under Title VII of the federal Civil Rights Act, however, the Court recognized that a partner is a "person" protected from retaliation under the FEHA for opposing alleged sexual harassment of the partnership's employees, because the anti-retaliation provision shields "any person" who opposes employment discrimination, even if there is no existing employment relationship with defendant. The Court noted that the circumstances before it were "unique" thus implying that such a retaliation claim will not be raised often. Nevertheless, the Court of Appeal's decision reflects a broadening of the FEHA prohibition against retaliation claims, which previously seemed to only apply to a relationship between employer and employee.

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