Last week, the EEOC released final statistics for the fiscal year ended September 30, 2011 and has issued a draft strategic plan that highlights a particular emphasis on pursuing systemic bias cases. Employers can take note of emerging trends regarding EEOC workplace enforcement efforts from these announcements.
Union Must Prove Changed Circumstances to Overcome Bargaining Impasse
Posted in Labor RelationsOn January 20, 2012, a federal court slapped down the NLRB for insisting that an employer must “test the Union’s stated willingness to move” after impasse is reached. The Board had ruled that an employer committed unfair labor practices when it declared an impasse and implemented a unilateral wage increase because “there was at least professed flexibility” over the sticking point of health insurance. The Court of Appeals for the D.C. Circuit, however, set aside the Board’s ruling of no impasse, finding that it was not supported by substantial evidence.Continue reading this entry
In a Landmark Decision, the Supreme Court Exempts “Churches” From Most Employment Discrimination Statutes Affecting “Ministers”
Posted in Discrimination, Retaliation and HarassmentThe First Amendment of the United States Constitution (U.S. Const. amend. I) provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This short sentence containing what is known as the Establishment Clause and the Free Exercise Clause, has been the source of a large body of law and scholarly commentary.Continue reading this entry
How Employers Faced With Potential False Claims Act Liability May Avoid Liability for Whistleblower Retaliation
Posted in Discrimination, Retaliation and HarassmentUnder the False Claims Act, a private whistleblower can bring suit on behalf of the federal government to recover funds fraudulently obtained from the government. See 31 U.S.C. § 3730. It is not uncommon for the whistleblower, who can keep up to 30 percent of the government’s total recovery, to be an employee of the defendant. Often, depending on how far along an investigation or lawsuit is, because lawsuits brought under the False Claims Act are initially filed under seal, the company may not even know the identity of the whistleblower for some time. Recently, a wide spectrum of companies — from manufacturing and construction to health care and banking have found themselves grappling with these issues, as they are confronted for the first time with False Claims Act investigations or lawsuits, in many instances instigated by their own employees.
NLRB Declares Arbitration Agreements Prohibiting Class Action Claims Unlawful
Posted in Labor Relations; New and Recent LegislationThe NLRB has decided to enter the fray in a big way as to the enforceability of arbitration agreements that do not allow for arbitration of class claims. On January 3, 2012, the NLRB ruled in D.R. Horton, Inc. and Michael Cuda, that it constitutes an unfair labor practice for an employer to require, as a condition of employment, that employees arbitrate claims as individuals rather than a class, unless a union has agreed to such arbitration provision. The NLRB found that such an agreement interferes with employees’ right to engage in protected concerted activity. This decision is a rebuke by the NLRB of two recent United States Supreme Court decisions: 14 Penn Plaza LLC v. Pyett and AT&T Mobility v. Concepcion. Continue reading this entry
Does Your New Year’s Resolution Involve Purging Records? Before You Do So, You Should Ensure Compliance With Applicable Recordkeeping Laws
Posted in Fair Labor Standards Act (FLSA)In the new year, you may be planning to purge records in an effort to create virtual or physical space and to save money on the cost of storing unnecessary records. However, before you do so, it is important to be familiar with federal and state document retention rules.Continue reading this entry
Potty Mouth Employee Loses Protection
Posted in Labor RelationsThe NLRB ruled that it was unlawful for Plaza Auto Center to fire car salesman Nick Aguirre after he swore at the company’s owner. Mr. Aguirre had only worked at the car dealership for two months, but in his short tenure, he raised a lot of complaints about his working conditions. Mr. Aguirre constantly asked his supervisors about how his commissions were calculated and when he could take bathroom and meal breaks. He griped about being employed on a 100-percent commission sales basis and said he should at least receive minimum wage.Continue reading this entry
NLRB Delays Its Notice-Posting Rule Once Again
Posted in Labor RelationsRegular readers of Foley’s Legal News: Employment Law Update will know that the NLRB has proposed a rule that would require most private sector employers in the United States to post a notice that informs their employees about their rights under the National Labor Relations Act. These rights include the right to form, join, or assist a union and the right to bargain collectively with their employers through their chosen representatives. The NLRB issued the final rule on the posting requirement on August 30, 2011. See the NLRB’s proposed poster and the NLRB’s FAQ document about the rule. Should the rule become effective, the poster is essentially the same as the one that federal contractors are already required to post under Executive Order 13496.Continue reading this entry
Careful Maintenance of Employee Medical Records May Help Avoid Needless Litigation
Posted in Americans With Disabilities Act; EEOC DevelopmentsEmployers often find themselves in possession of medical information about their employees, particularly when making determinations regarding leaves of absence, disability accommodations, or when implementing employee wellness programs. Recent developments in federal law, however, and guidance from the EEOC have taught that the manner in which this information is maintained can be a ticking litigation time bomb if not diffused correctly.
Make Sure You Increase Minimum Wage, Where Needed
Posted in New and Recent LegislationHappy New Year! Many state laws and local ordinances provided for an increase in minimum wage effective January 1, 2012. Make sure you are complying with these increases for any employees who work for you in the following states or locales:Continue reading this entry