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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 40 posts by Tom H. Luetkemeyer.

OSHA Updates its Employer Guidance on COVID-19-Related Fatality Reporting

On September 30, 2020, the Occupational Safety and Health Administration (OSHA) updated its answers to frequently asked questions regarding an employer's obligation to report a COVID-19-related fatality if it occurs within 30 days of the work-related incident. Notably, according to OSHA, an "incident" includes exposure to COVID-19 in the workplace. In order for a fatality to be reportable it must occur within 30 days of the exposure at work, and an employer must report the fatality to OSHA within eight hours. The time clock for the reporting obligation commences within eight hours of the employer knowing that the employee has died and that the cause of death was work-related. More ›

NLRB Weighs in on the Issue of Employer Neutrality Agreements and Section 7 Rights

The National Labor Relations Board (Board) issued a Guidance Memorandum (Guidance) on September 4, 2020, addressing the analysis of employer assistance in union organizing efforts. The Guidance has been provided as a response to requests from regional directors on a series of issues relating to the "amount of lawful support an employer can provide to a union that is attempting to organize its employees." More ›

Escape Clause in Mandatory Arbitration Agreement Carries the Day for Employer in NLRB's Unfair Labor Practice Analysis

Historically, there has been a "push and pull" between the National Labor Relations Board (Board) and employers over mandatory arbitration agreements and class action waivers. Although most of the disputes have been resolved by recent SCOTUS jurisprudence, the Board remains concerned with restrictions in arbitration agreements that limit the ability of employees to file unfair labor practice charges before the Board if employees believe their Section 7 rights have been violated. More ›

Medical Staff Member Deemed Independent Contractor, Not Eligible for Title VII Protection

When assessing potential exposure for their employer-clients under federal labor and employment statutes, employment and health care attorneys often must start with the basics. That determination of employment status becomes even more important in medical facilities, such as hospitals, which have multiple and complex levels of workers with varying levels of skills and responsibilities. This is especially true with independent medical staff members who may have other contractual relationships with hospitals—such as recruitment agreements or administrative services contracts—which can complicate these questions.

The Ninth Circuit recently confronted such a situation when deciding whether an independent member of the medical staff, who had a separate recruitment agreement as well as an on-call services agreement, was an employee or independent contractor. This decision is important for the litigants, because independent contractors ordinarily are not covered by Title VII. More ›

EEOC Issues Guidance on Opioid Use and Accommodation in the Workplace

The U.S. Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents on opioid-related disability issues and reasonable accommodation. The first document (Guidance) employs a question and answer format and focuses primarily on typical questions employees may ask, although employers can also use it as a useful guide when dealing with the illegal use of opioids, the lawful use of prescribed opioids, employees who have a history of opioid use or abuse, and the accommodation responsibilities in each instance. The second document offers guidance to healthcare providers tasked with providing documentation for opioid-using patients seeking accommodations. More ›

NLRB Clarifies its Section 7 Evidentiary Standard for Evaluating Employer Discipline for Employee Abusive Conduct

Last September, we anticipated a change in National Labor Relations Board (Board) policy regarding the evidentiary standard for resolving unfair labor practice charges related to employer discipline of employee abusive conduct. Now, the Board will employ a single proof paradigm—the Wright Line test—to resolve such unfair labor practice allegations. More ›

U.S. Supreme Court Holds Section 1981 Racial Discrimination Claims Require But-For Causation

In a unanimous decision issued on March 23, 2020, the United States Supreme Court held that a but-for causation standard applies to claims brought under Section 1981 of the Civil Rights Act of 1866. The Supreme Court also noted that this standard applies throughout the litigation process, including the initial pleading stage.

The Civil Rights Act of 1866, a Reconstruction-era statute, includes Section 1981, which guarantees "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." In Comcast Corp. v. National Association of African American-Owned Media, the plaintiff pursued a number of theories, but essentially argued that the Court should adopt the motivating factor test employed in cases arising under Title VII of the Civil Rights Act of 1964. Employment law practitioners often will see complaints including counts for both violations of Title VII and Section 1981. It is important to recognize that the causation standards are different for these two statutes. More ›

Federal Court Allows ADEA Disparate Impact Claims over Employer Policies to Proceed

Ever since the Supreme Court's 2005 decision in Smith v. City of Jackson, plaintiff employment lawyers have struggled with how best to assert a viable claim of disparate impact age discrimination. The concept of disparate impact discrimination was recognized by the Supreme Court decades ago in Griggs v. Duke Power, which established that Title VII of the Civil Rights Act of 1964 made it unlawful—even if facially neutral—for employer practices to have a materially adverse impact on a protected group, unless the neutral practice is supported by business necessity. More ›

D.C. Circuit Instructs NLRB to Revisit its Approach to Balancing Section 7 Rights with Other Employer Obligations

The Court of Appeals for the D.C. Circuit recently remanded a decision of the National Labor Relations Board (the "Board"), thus compelling the Board to revisit and clarify its position on the scope of Section 7 protection for speech or conduct which may subject an employer to liability under other statutes, including Title VII. The D.C. Circuit concluded that the Board failed to consider key arguments raised by the employer, namely, the conflict between the Board's interpretation of the National Labor Relations Act (NLRA) and an employer's obligation to provide a workplace free of unlawful harassment under state and federal equal employment opportunity laws. More ›

NLRB Restricts Employee Use of Employer-Provided Email for Section 7 Purposes

Earlier this week, the National Labor Relations Board ("Board") issued an important decision, returning to its prior precedent with respect to employee use of employer-provided email for Section 7 purposes. In Caesars Entertainment and International Union of Painters and Allied Trades, District Council, the Board overruled the Obama-era decision of Purple Communications, Inc. and returned to the rationale the Board had adopted during the George W. Bush era in Register Guard.

The Board held that the Purple Communications decision was out of line with its prior precedent and impermissibly discounted employers' property rights with respect to their IT resources while overstating the importance of those resources to Section 7 activity. In returning to the Register Guard holding, the Board recognized and created an exception to the Register Guard rule in cases where an employer's email system is the only reasonable means for employees to communicate with one another. More ›

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