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Photo of Employment Law Observer Tom H. Luetkemeyer
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tluetkemeyer@hinshawlaw.com
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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 16 posts by Tom H. Luetkemeyer.

Major League Baseball Umpire Strikes Out in His Assertion of Union Privilege in Discrimination Claim

A Federal District Court in New York recently fielded the issue of whether there is such a thing as a union relations privilege and the extent of that privilege. In Hernandez v. Office of the Commissioner of Baseball (18 Civ.No.35), baseball umpire Angel Hernandez alleged that Major League Baseball (MLB) had discriminated against him with respect to crew chief assignments and post-season umpiring assignments. There was no evidence Hernandez filed a grievance under his collective bargaining agreement regarding his discrimination claim and this was key to MLB's defense. Hernandez asserted union privilege in order to protect any discussions with representatives of the Major League Baseball Umpires Association (the "Union"). A New York District Court Judge, agreeing with the Magistrate Judge's recommendation, determined that under federal common law, any union relations privilege would only cover communications made in the context of representation by a union representative during disciplinary proceedings under a collective bargaining agreement. More ›

Employers Must Comply with FMLA Leave Designation Rules

Employers seeking to juggle employee leave demands with their own regulatory compliance obligations received clarification from the U.S. Department of Labor (DOL). Specifically, the DOL published a clarifying opinion letter regarding the issue of whether an employer may delay the designation of leave that qualifies under the Family and Medical Leave Act (FMLA) and provide employees with leave beyond the 12-week statutory entitlement. The DOL ruled the employer cannot delay the designation. More ›

Seventh Circuit is latest Federal Court to Limit ADA Protection for Obesity

Regulators, judges and academics have all been vexed over the issue of whether obesity, not caused by an underlying physiological condition, is a disability covered by the Americans with Disabilities Act (“ADA”). Notwithstanding existing EEOC Enforcement Guidance that obesity is in and of itself protected under the ADA, the Seventh Circuit Court of Appeals recently weighed in on the issue and held obesity is not an ADA-protected disability unless it is caused by a physiological disorder or condition. More ›

Employer Alert: SCOTUS Holds That EEOC Charge Processing Rules can be Waived by a Defendant Since they are not Jurisdictional

On June 3, 2019, the Supreme Court of the United States made a ruling that employers and their legal counsel need to be aware of. In Fort Bend County v. Davis, the Supreme Court ruled that the charge-filing requirements for EEOC discrimination claims filed under Title VII, including that Act's scope of charge and filing rules, are not jurisdictional and instead are claims processing rules which can be waived by a defendant if not timely raised in federal court proceedings. This decision resolves a split among multiple federal Circuit Courts which have confronted the issue. More ›

In a Win for Labor Unions, Illinois Governor Pritzker Signs Bill Prohibiting Municipalities from Establishing Right-to-Work Zones

Illinois Governor J.B. Pritzker recently signed into law the Collective Bargaining Freedom Act, formally ending an initiative of former Illinois Governor Bruce Rauner. Effective as of April 12, 2019, the new law limits the ability of municipalities, counties, villages, and taxing districts to enact "right-to-work zones" which prevent employers and unions who work within the zones from executing, implementing, and enforcing union security provisions. More ›

State Common Law Claims May Be Preempted By The Fair Labor Standards Act

A District Court Judge in the Eastern District of Pennsylvania recently ruled that the Fair Labor Standards Act (“FLSA”) preempted a plaintiff’s attempt to add state common law counts for breach of contract and unjust enrichment onto his statutory wage and hour claims. Formica v. US Environmental, Inc., (No. 18-459; July 11, 2018).  The plaintiff alleged FLSA, Pennsylvania Minimum Wage Act, and Pennsylvania Wage Payment and Collection Law claims.  More ›

The Fight for $15 and the NLRB

In-N-Out Burger, Incorporated (In-N-Out) found itself on the wrong side of National Labor Relations Board (NLRB) unfair labor practice proceedings for prohibiting its employees from "wearing any type of pin or stickers" on their uniforms. The Fifth Circuit, in In-N-Out Burger, Incorporated v. National Labor Relations Board (No. 17-60241, decided July 6, 2018), upheld a NLRB finding that In-N-Out violated Section 8(a)1 of the National Labor Relations Act by prohibiting its employees from wearing a "Fight for $15" button and for maintaining an overly broad uniform policy. More ›

Unpacking the Supreme Court's Janus Decision

The United States Supreme Court issued its long-anticipated decision in Janus v. American Federation of State, County and Municipal Employee Council 31 on June 27, 2018.  The five to four majority held that requiring public-sector employees who are not union members to pay union agency fees violates the First Amendment.  In the final paragraphs of the majority opinion, the Court made it clear that in the context of a public sector employer-union relationship, non-member employees in the bargaining unit must provide express consent before union dues can be deducted from their paychecks.  Janus' implications for public employers are wide-ranging. However, the immediate question that unionized public-sector employers must address is how to administer existing agency fee provisions in collective bargaining agreements and distinguish between union members and non-members, whose express consent is now required before union dues can be deducted from their paychecks.  It is important to note that this decision is grounded in constitutional principles and only applies to public sector unionized employees. More ›

Seventh Circuit Sets Proof Paradigm for ADA Interference Claims

Too often, we think of Americans with Disabilities Act (“ADA”) claims in terms of discrimination and failure to accommodate. Employment lawyers typically see interference claims in the context of other employment statutes, such as the Family Medical Leave Act (“FMLA”). However, the ADA also includes a provision prohibiting interference. It is unlawful for an employer to “coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA.”  More ›

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 ›

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