Seventh Circuit Issues Another ADA Decision Involving Obesity Disability, Finds Future Impairments Are Not Covered

The Seventh Circuit Court of Appeals has issued another ruling regarding an obesity-related disability accommodation request under the American with Disabilities Act (ADA). Earlier this past summer, we reported on another Seventh Circuit case, in which the court held that obesity is not an ADA-protected disability unless it is caused by a physiological disorder or condition. In Ronald Shell v. Burlington Northern Santa Fe Railway Company, the Seventh Circuit reversed a district court's decision, and ruled that an obese applicant for a safety-sensitive position—who was not hired due to his obesity—cannot claim discrimination under the "regarded as" prong of the ADA. More ›

Federal Court in Montana Rules Demand for a Supervisor Reassignment is not an Appropriate Accommodation under the ADA

If you do not like your boss, can you demand your employer provide you with a new one? A federal district court in Montana recently rejected such an accommodation request in a well-reasoned case involving the Americans with Disabilities Act (ADA) and related state law. While the court did not rule out the requested accommodation as unreasonable as a matter of law, it did find the request was not appropriate under the facts of the case. More ›

NLRB Provides Section 7 Guidance to Employers Regarding Drafting of Arbitration Agreements

There is an ongoing tension between the National Labor Relations Board (the "Board") and employers who seek to expand the use of an arbitration forum to resolve employment disputes. The U.S. Supreme Court has continued to endorse the idea that arbitration is both an important part of national labor policy and a reasonable alternative to litigation in court for employment-related disputes. As the Board issues new opinions and interprets guidance from the Supreme Court, employers are in a position to gain better insight and avoid problematic drafting mistakes in arbitration agreements. More ›

The Suggestion Box: Useful Management Tool or Unlawful Solicitation of Grievances

T-Mobile USA, Inc. ("T-Mobile") in 2015 created T-Voice, a nationwide program through which customer service representatives could submit "pain points" regarding certain aspects of the job, including ideas to improve customer service. The majority of these pain points addressed customer service issues, such as billing, fraud procedures, access to computer programs, and at times, the type of music customers were subjected to while on hold. Some of the suggestions have led to action being taken by T-Mobile, like requests for device-charging stations, which resulted in T-Mobile installing three stations. More ›

Under Surveillance: Investigating Intermittent FMLA Abuse

Since being enacted in the early 1990s, the Family and Medical Leave Act (FMLA) has provided meaningful protections for employees dealing with their own serious health issues or those of immediate family members through continuous and intermittent leave options. Human resource professionals and employment lawyers alike recognize how valuable intermittent leave is for employees needing periodic care; however, they also recognize this form of leave also is abused. Employers need to be able to effectively investigate suspected benefit abuse and discourage the dishonest use of the FMLA. More ›

NLRB Proposes Rule that Would Deny Undergraduate and Graduate Students the Right to Unionize

The National Labor Relations Board (NLRB) has proposed a new rule which would exclude undergraduate and graduate students from coverage under Section 2(3) of the National Labor Relations Act (NLRA). Specifically, students who perform study-related services in return for financial compensation at private colleges and universities would not be able to collectively organize as employees. The proposed rule is subject to a sixty-day comment period. More ›

NFL Running Back Union Blocked in Attempt to Form Separate Bargaining Unit

A unit clarification petition filed by the fledgling International Brotherhood of Professional Running Backs (IBPRB) was dismissed on September 17, 2019, by the Acting Regional Director of Region 13 of the National Labor Relations Board (NLRB). The IBPRB wanted to carve out running backs from the collective bargaining agreement between the National Football League Players Association (NFLPA)—the union that represents all NFL players—so that they could negotiate their own labor contract with the NFL. The IBPRB cited several reasons for their petition, including  "unique career structures," along with a claim that the mini-max rookie wage contract is economically harmful to running backs, but "advantageous" to quarterbacks. More ›

NLRB Deals Another Blow to Obama-Era Micro-Units

From an employer's perspective, one of the most challenging decisions to come out of the Obama-era National Labor Relations Board (NLRB) was the concept of "micro-units" within an employer's organizational structure. Under the concept, employers could have multiple, small bargaining units, sometimes involving different unions, notwithstanding the fact that a broader group of employees shared a significant (though not ''overwhelming'') community of interest. That decision was later overruled by the NLRB in PCC Structurals, Inc. 365 NLRB No. 160 (2017), which restored the Board's prior standard for determining the appropriateness of a petitioned-for bargaining unit. Now, in The Boeing Company, 368 NLRB No. 67 (2019), the NLRB has further clarified the required analysis for this determination. More ›

NLRB to Revisit Issue of When Employees Lose NLRA Section 7 Protection When Using Threatening and Demeaning Language

While discussing work assignments with his supervisor, an employee uses abusive and profane language. In another incident, the employee disrupts a workplace meeting by playing loud music with racial and political overtones. These and other behaviors led to discipline which was in turn challenged by the employee as an unfair labor practice. In General Motors LLC and Charles Robinson (14-CA-197985; 14-CA-208242), the National Labor Relations Board (NLRB) requested public comment on when insubordinate, threatening or intimidating behavior should not constitute protected activity under Section 7 of the National Labor Relations Act (NLRA). It is not uncommon for the NLRB to request public comment in situations where there may be a policy shift.

The facts of General Motors LLC and Charles Robinson are relatively straightforward. Charles Robinson is a Union Committee representative, and he could be characterized as a zealous supporter of worker rights in a unionized environment. From a management perspective, he could just as easily be deemed a disruptive, uncooperative, intimidating, and threatening employee. Robinson was disciplined by the employer for essentially three reasons: More ›

NLRB Reverses Itself and Broadens Employer Property Rights in Restricting Access to Non-Employee Union Agents

The National Labor Relations Board (NLRB) has revisited the issue of when an employer may restrict access to its private property by non-employee union agents. In Kroger Limited Partnership, a union business agent was denied access to the food store's parking lot to solicit Kroger's customers to boycott the store. When the union agent refused to leave, the supermarket called police to force the union agent to leave the premises. The NLRB was subsequently was called upon to assess whether Kroger's actions were unlawful and discriminatory under the National Labor Relations Act (NLRA). More ›