Labor & Employment Law

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Labor & Employment Law

TOP STORY—7th Cir.: Doctor fails to get preliminary injunction for reinstatement after refusing COVID-19 vaccine on religious grounds

The pediatric critical care specialist failed to show irreparable harm after losing his job for noncompliance with the hospital’s vaccine mandate. After objecting to his employer’s vaccine mandate on religious grounds and subsequently losing his job,...

TOP STORY—7th Cir.: Doctor fails to get preliminary injunction for reinstatement after refusing COVID-19 vaccine on religious grounds
EXPERT INSIGHTS—Bloomington, Minnesota, passes paid sick and safe leave ordinance
June 24, 2022
Nathan T. Boone

“Bloomington's ordinance is similar to municipal ordinances enacted in three other Minnesota cities—Minneapolis, St. Paul, and Duluth.” On June 6, 2022, after a year of public meetings and feedback, the Bloomington City Council unanimously approved a...

EXPERT INSIGHTS—OSHA reminds Arkansas, Louisiana, Oklahoma, and Texas employers to protect workers from heat-related illness
June 24, 2022
Andrew Burnside & Claire Pitre

“On April 8, 2022, OSHA launched a national emphasis program to protect workers from heat-related illness and injuries.” High temperatures in the Southwestern United States have and continue to break records. In Arkansas, Louisiana, Oklahoma, and Tex...

CLASS ACTIONS—S.D.N.Y.: Former NYU grad student fails to get class certification for claims involving fees collected during pandemic shutdowns
June 24, 2022
Todd Harrison, J.D.

Specifically, she had sought class certification for all who had paid fees for or on behalf of students for the use of facilities and services in spring 2020 that were not provided in whole or in part. A federal district court in New York denied a fo...

DISCRIMINATION—DISABILITY—E.D. Va.: Failure-to-accommodate, retaliation claims of home health nurse who refused field assignments fails to advance
June 24, 2022
Nadine E. Roddy, J.D.

The only accommodation the nurse would accept—complete exemption from field visits—was unreasonable under the circumstances of the COVID-19 pandemic. A discharged employee of a home health care agency, who had refused to perform field visits on accou...

DISCRIMINATION—DISABILITY—S.D. Miss.: No showing Aaron’s engaged in campaign to eliminate general manager based on vision impairment
June 24, 2022
Kathleen Kapusta, J.D.

The GM, who was considered to be legally blind, voluntarily gave up his driver’s license even though driving was part of his job description. Although a legally blind Aaron’s, Inc., general manager produced some evidence that some of the complaints a...

DISCRIMINATION—SEX—E.D. Wis.: Female YMCA employee fired for ‘negative attitude’ gets trial on reprisal, gender bias claims
June 24, 2022
Marjorie Johnson, J.D.

The decisionmaker allegedly put up obstacles to the employee being hired, paid her less than her male peers, prevented her from going on a “men-only” training trip, and didn’t follow the progressive discipline policy. A jury will decide whether a fam...

DISCRIMINATION—SEXUAL HARASSMENT—4th Cir.: Department store employee’s sexual harassment claim fails to advance
June 24, 2022
Todd Harrison

Despite the conduct in question being inappropriate, the court found the alleged harassment was not severe or pervasive enough to overcome the employer’s motion for summary judgment. In an unpublished opinion, the Fourth Circuit affirmed a lower cour...

INDIVIDUAL RIGHTS—D. Minn.: Bank employee allegedly fired over advocacy against student mask mandate advances First Amendment claims
June 24, 2022
Marjorie Johnson, J.D.

The employee claimed a school superintendent who was displeased with her efforts to oppose the mask-wearing policy and her critical social media posts conspired with her supervisor to have her suspended and fired. A bank employee who claimed that a s...

LABOR—BARGAINING—8th Cir.: Union denied preliminary injunction to require restoration of status quo for rail employees
June 24, 2022
Ronald Miller, J.D.

The plain language of the RLA did not support the union’s argument that the employer’s purported Section 6 notice was merely a counterproposal to the union’s still-ongoing notice. After finding that a union was unlikely to succeed on the merits, a fe...

LABOR—NLRB WEEKLY SUMMARY—Weekly summary of NLRB decisions
June 24, 2022
WK Editorial Staff

The Summary of NLRB decisions for the week of June 13 - 17, 2022 is now available on the NLRB’s website. The summary can be accessed by clicking thislink . Cases: AgencyNews Labor NLRBWeeklySummary

LABOR—UNIONS, UNION MEMBERS—9th Cir.: ‘Good faith’ defense shielded employer from employee claims for pre-Janus agency fees
June 24, 2022
Ronald Miller, J.D.

Municipalities are entitled to a good faith defense to a suit for a refund of mandatory agency fees under Section 1983. In view of the Ninth Circuit’s decision in Danielson v. Inslee , the appeals court concluded that municipalities, as well as union...

WORTH NOTING—Cases of note dealing with disability discrimination
June 24, 2022
WK Editorial Staff

A roundup of recent disability discrimination decisions of interest to the labor and employment community. 5th Cir.: Welding inspector fired due to declining performance, market conditions. While a welding inspector in his 60s was on leave due to hea...

DOJ NEWS—IT staffing company will pay $17K civil penalty for allegedly discriminating against U.S. workers
June 24, 2022
WK Editorial Staff

The company will also revise its employment advertisements and hiring practices and provide training to employees. SpringShine Consulting, Inc., has agreed to pay $17,000 in civil penalties to the United States to resolve claims that the California-b...

DOL NEWS—WHD recovers $653K in back wages and damages for FLSA, MSPA violations
June 24, 2022
Jonathan Anderson

The infractions resulted from practices such as paying flat salaries regardless of hours worked, terminating an employee who inquired about compensation, and failing to pay farm workerwages when due. The DOL’s Wage and Hour Division has separately an...

NLRB NEWS—New General Counsel memo updates make-whole remedies available in settlement agreements
June 24, 2022
Pamela Wolf, J.D.

Those remedies include the cost of baby formula due to the loss of a workplace breast pumping station and the cost of retrofitting a discriminate’s car to make it usable in a new job. In a June 23, 2022, Memorandum (GC 22-06 ), NLRB General Counsel J...

OFCCP NEWS—Medical tech manufacturer will pay $499K to resolve alleged hiring bias against women
June 24, 2022
WK Editorial Staff

The government contractor will also ensure that its hiring policies and procedures are free from discrimination, and provide training to managers, supervisors, and others who oversee hiring decisions. Under a conciliation agreement, Becton, Dickinson...

SURVEYS—Majority of workers felt employers’ COVID-19, racial equity policies were ingenuine
June 24, 2022
Patricia K. Ruiz, J.D.

Leader empathy was a key determinant in whether employees perceived COVID-19 and racial equity policies to be genuine. In response to the COVID-19 pandemic and renewed calls for racial justice, many employers responded with new policies and pronounce...

Labor & Employment Law

TOP STORY—W.D. Mo.: Legislative aide who advocated for mask mandate entitled to trial on First Amendment claim

The employee alleged he was wrongfully terminated from his employment with the state house of representatives because of his emails advocating for a mask mandate in the Capitol building. Although most of the emails sent by a legislative specialist em...

TOP STORY—W.D. Mo.: Legislative aide who advocated for mask mandate entitled to trial on First Amendment claim
EXPERT INSIGHTS—Four big benefits to bringing an anti-Slapp motion in a California employment lawsuit
June 23, 2022
Christina M. Guerin

“[Given the benefits of the statute, it certainly warrants a good look if the potential is there.” California enacted its anti-SLAPP (i.e., Strategic Lawsuits Against Public Participation) statute to provide a procedural remedy early in litigation to...

EXPERT INSIGHTS—Hotoff the press: new labor reform bill for Puerto Rico
June 23, 2022
Anabel Rodríguez-Alonso & Elizabeth Pérez-Lleras, Erika Berríos, Irene Viera Matta & Liliana Hernández

“The new law intends to restore certain rights that had been eliminated or reduced by the 2017 Labor Transformation and Flexibility Act ("2017 Labor Reform") and, further, to create additional rights for part-timers and students.” On June 20, 2022, G...

ARBITRATION—M.D.N.C.: Amazon prevails over delivery contractor in suit questioning arbitration agreement
June 23, 2022
Patricia K. Ruiz, J.D.

The delivery company failed to provide evidence that the program agreements signed did not contain arbitration clauses. The federal district court in Greensboro, North Carolina granted a motion to dismiss and compel arbitration in favor of Amazon Log...

COVERAGE, LIABILITY—E.D. Pa.: Former court worker fails to establish he was an employee and termination was gender-based
June 23, 2022
Todd Harrison, J.D.

There was some question as to whether the former court crier would fall into the “personal staff” exception found in Title VII’s definition of “employee.” A federal district court in Pennsylvania granted a motion to dismiss to the Montgomery County C...

DISCRIMINATION—AGE—E.D. Cal: Evidence of HR Director’s ageist comments raises inference of discrimination in discharged employee’s ADEA suit
June 23, 2022
Nadine E. Roddy, J.D.

Short time interval between employee’s complaints to HR and her discharge also raises an inference of retaliatory motive. A county employee, who was released from her probationary employment in a public defender’s office after complaining of unfair t...

DISCRIMINATION—D. Md.: Employee failed to sufficiently allege claims for failure to promote, unequal terms of employment and unequal pay
June 23, 2022
Justin Marcus Smith, J.D.

The fact that all of the comparator positions had the title of “director” was insufficient, on its own, to conclude that the positions were actually comparable. An employer was granted a motion to dismiss an employee’s claims for failure to promote, ...

DISCRIMINATION—SEX—D.S.C.: Long-time university women’s volleyball coach advances claims of sex discrimination and retaliation
June 23, 2022
Brandi O. Brown, J.D.

She was told that her contract was not being renewed for “competitive reasons,” but male coaches of male teams with worse records were renewed and the decision came at the first renewal following her claim of sexual harassment. Over objections, a fed...

PROCEDURE—S.D.N.Y.: Server’s wage-and-hour action against shuttered restaurant’s alleged successor stayed pending resolution of pending action against restaurant
June 23, 2022
Marjorie Johnson, J.D.

The court anticipated that any findings made in the separately filed earlier action would “narrow and refine the parties’ dispute” in the instant action. A server who joined a wage-and-hour lawsuit in 2019 against a restaurant where he formerly worke...

REMEDIES, DAMAGES—NLRB: Six-day workweek long dead, so cease-and-desist order unnecessary
June 23, 2022
Ronald Miller, J.D.

Because the six-day workweek had not been in effect since 2016, it was unnecessary to order the employer to cease and desist from unilaterally imposing six-day workweeks on unit employees. On remand from the Second Circuit, the NLRB agreed that ADT v...

AGENCY NEWS—Brinks chilled whistleblowing despite knowing about SEC enforcement
June 23, 2022
Rodney F. Tonkovic, J.D.

During a period when the SEC was stepping up enforcement of its whistleblower protection rule, new employees at Brinks were required to sign a confidentiality agreement with no exemptions. The Brinks Company has settled SEC charges that it violated w...

DOL NEWS—$650K in damages awarded where CEO prompted ICE arrest of employee who reported injury
June 23, 2022
Pamela Wolf, J.D.

Shortly after the employee engaged in protected activities, the company and its CEO initiated a law enforcement investigation and facilitated the employee’s detainment by ICE, according to OSHA. The Department of Labor is touting a Massachusetts fede...

EEOC NEWS—Disability and retaliation, sexual harassment suits settled for $486K; two new suits filed
June 23, 2022
Pamela Wolf, J.D.

A recruiting services company and an HVAC contractor settled allegations; new suits were filed against two staffing companies. In recent developments, the EEOC separately settled lawsuits against employers in Idaho and Washington alleging disability ...

FEDERAL REGULATIONS—NLRB to tackle proposed rules on joint-employer status and construction industry election protections
June 23, 2022
Pamela Wolf, J.D.

The Board expects to issue NPRMs in July on joint-employer status, and in September on election protections in the construction industry. The NLRB has identified two items on its Spring 2022 Agency Rule List : proposed rules on joint-employer status ...

REPORTS—Washington Commanders owner, NFL purportedly conducted shadow investigation to conceal toxic workplace
June 23, 2022
Patricia K. Ruiz, J.D.

Evidence shows the shadow investigation sought to conceal Snyder’s role in troubling conduct. A memo shared with the House Committee on Oversight and Reform by Chairwoman Carolyn B. Maloney(D-N.Y.) details findings from the Committee’s investigation ...

Labor & Employment Law

TOP STORY—11th Cir.: Employees of federal grant recipients fall within NDAA whistleblower protections

However, a grant recipient employee’s claim was not protected because the court adopted an interpretation of what constitutes a “reasonable belief” and “gross mismanagement” from cases interpreting the WPA. An Atlanta Housing Authority attorney who w...

TOP STORY—11th Cir.: Employees of federal grant recipients fall within NDAA whistleblower protections
EXPERT INSIGHTS—The city of Chicago amends sexual harassment laws, including new training, policy, and notice requirements
June 22, 2022
Zoe Spector & Susan Lorenc & Chuck Poplstein

“Notably, by July 1, 2022, all employers in the City will be required to have a policy on sexual harassment.” The City of Chicago ("the City") recently amended its laws on sexual harassment in the workplace. Notably, by July 1, 2022, all employers in...

EXPERT INSIGHTS—Updates to Illinois's bereavement leave and employee sick leave laws
June 22, 2022
Jennifer L. Colvin & Zachary Pestine

The governor recently signed into law two bills addressing employee leave. Illinois Governor JB Pritzker recently signed into law two bills addressing employee leave. The Family Bereavement Leave Act (FBLA) provides eligible employees with unpaid tim...

DISCRIMINATION—DISABILITY—M.D. Pa.: Nursing home faces trial on regarded-as claim of nurse who asked to use cane for MS
June 22, 2022
Kathleen Kapusta, J.D.

The African-American nursing home employee’s federal and state race-based claims, however, were dismissed on summary judgment. Although a Black RN, who was fired for disciplinary infractions after only four months on the job, failed to convince a fed...

EMPLOYEE LEAVE—Colo. Sup. Ct.: Constitutional challenge to Colorado’s paid leave program fails
June 22, 2022
George Basharis, J.D.

Program’s premium structure did not violate restraints on the state’s income tax law. A premium collected from employers and employees to fund a state-run paid family and medical leave program did not violate a provision of Colorado’s constitution th...

INDIVIDUAL RIGHTS—W.D. Tenn.: Claims related to employer’s COVID vaccine mandate largely failed
June 22, 2022
Nicole D. Prysby, J.D.

The employee failed to show that the actions of her employer in imposing a vaccine mandate were equivalent to government or state action. Claims that an employer violated federal and statute constitutions and statutes by requiring an employee to be v...

REMEDIES, DAMAGES—D. Or.: Insurance brokerage denied preliminary injunction against former employees
June 22, 2022
Kevin M. Finson, J.D.

A brokerage firm was unable to establish likelihood of success on the merits in a trade secret dispute when it could not show that the documents allegedly transferred contained any trade secrets. An insurance brokerage firm was not entitled to a prel...

REMEDIES, DAMAGES—Iowa Sup. Ct.: Car tuner’s liability for defamation against former employer upheld, $11 million in damages excessive
June 22, 2022
Todd Harrison, J.D.

When determining damages, the jury based its award, in part, on the employer’s estimated lost revenue, not his estimated lost profits. Finding $11 million in damages in a defamation case excessive, the Iowa Supreme Court granted remittitur to the dam...

SAFETY—11th Cir.: Release of ammonia at Tampa Electric plant wasn’t ‘uncontrolled’ so HAZWOPER standard didn’t apply to its response
June 22, 2022
Kathleen Kapusta, J.D.

At issue was whether the power company violated the OSHA standard when its employees responded to an ammonia release without first donning specified protective gear. Because the release of ammonia at a Tampa Electric Company plant was not “uncontroll...

STATE-LAW CLAIMS—Cal. App.: Truckers may pursue meal and rest break claims pre-dating preemption of California rules
June 22, 2022
Ronald Miller, J.D.

In view of the FMCSA’s use of language suggesting prospective application only, and its failure to expressly extend its decision to pending claims, meant that the preemption decision did not apply to bar claims arising from conduct that occurred prio...

STATE-LAW CLAIMS—Wash. App.: Seattle payroll expense tax passes constitutional muster
June 22, 2022
Todd Harrison, J.D.

The city adopted a payroll expense tax on certain entities engaged in doing business in Seattle in response to a homelessness emergency and loss of revenue due to COVID-19. A Washington Court of Appeals affirmed a trial court’s grant of summary judgm...

TORT CLAIMS—E.D. Pa.: Postdoctoral university employee accused of making a female peer feel uncomfortable failed to advance defamation claim
June 22, 2022
Marjorie Johnson, J.D.

Though he argued that he must have suffered “professional damage by the dissemination of false allegations of sexual harassment,” he failed to present any evidence of an actual reputational injury. A university professor did not defame a postdoctoral...

DOL NEWS—‘Good Job Principles’ advance goal of creating good-quality jobs
June 22, 2022
Patricia K. Ruiz, J.D.

The principles help create a shared vision of job quality among employers, labor unions, and governments. The “Good Jobs Principles,” released by the Departments of Labor and Commerce, provides employers, workers, federal agencies, state and local go...

DOL NEWS—Employers pay $428K in back wages, damages for FLSA, FMLA violations
June 22, 2022
Jonathan Anderson

The infractions resulted from practices such as paying flat salaries, terminating an employee after denying FMLA leave, using tips to pay other employees’ wages, and endangering minor-age workers. The DOL’s Wage and Hour Division has separately annou...

FEDERAL REGULATIONS—DOL expects to issue a final COVID-19 ETS in September 2022
June 22, 2022
Pamela Wolf, J.D.

The DOL’s Spring 2022 Rule List also anticipates a final rule, Update to the Hazard Communication Standard, in December 2022. The Department of Labor’s Spring 2022 Agency Rule List, posted on June 21, represents actions that complement its “Good Jobs...

LITIGATION NEWS, TRENDS—Tesla shareholder files derivative suit against Elon Musk, board of directors,citing toxic culture
June 22, 2022
Jeffrey H. Brochin, J.D.

Verified stockholder derivative complaint filed by a shareholder alleges that a toxic culture of racism and sexual harassment pervades the Tesla workplace and exposes the company to federal and state law liability, while tolerated by board. A Tesla, ...

NLRB NEWS—Buffalo Regional Director seeks nationwide cease-and-desist order against Starbucks
June 22, 2022
WK Editorial Staff

After seven union activists were allegedly fired at five different stores over the course of six weeks, regional director is seeking reinstatement and a bargaining order. On June 21, the NLRB’s Region 3-Buffalo Regional Director petitioned a federal ...

Labor & Employment Law

TOP STORY—7th Cir.: Lower court should have sent 62-year-old plant employee’s harassment-based claim of constructive discharge to trial

The plant manager allegedly trivialized his coworkers’ daily ageist insults, interference, and vulgar graffiti as mere “horseplay,” did not warn them of repercussions if their harassment persisted, and did not monitor the situation to ensure that it ...

TOP STORY—7th Cir.: Lower court should have sent 62-year-old plant employee’s harassment-based claim of constructive discharge to trial
EXPERT INSIGHTS—Avoiding ADA violations when using AI employment technology
June 21, 2022
Allon Kedem & Peter J. Schildkraut & Joshua Alloy

“Arnold & Porter attorneys explain what employers need to understand about new guidance from the EEOC and the Justice Department on avoiding disability discrimination when using these tools and look at enforcement trends in the states and abroad.” Ma...

EXPERT INSIGHTS—Is COVID a 'natural disaster' under the WARN Act?
June 21, 2022
Felicia O'Connor

“The First Circuit Court of Appeals recently decided whether COVID related layoffs qualify as a ‘natural disaster’ under the WARN Act. As manufacturing employers are well aware, the COVID pandemic has forced many employers to furlough or layoff emplo...

CLASS ACTIONS—Cal. App.: Former Pacific Bell employee revives some class labor code claims
June 21, 2022
Todd Harrison, J.D.

The premises technician argued that the employer’s written guidelines governing meal and rest breaks presented predominantly common issues, despite a diverse application of the guidelines in practice. A California appellate court reversed a trial cou...

CONTRACT CLAIMS—W.D.N.Y.: Failure to timely tender back settlement funds ratifies voidable agreement settling discrimination claims
June 21, 2022
Nicole D. Prysby, J.D.

Even if an agreement settling discrimination claims was voidable because the employee did not sign it knowingly or voluntarily, the employee’s failure to tender back consideration received for almost four years constituted ratification of the agreeme...

DISCRIMINATION—DISABILITY—W.D. Ark.: Narcoleptic service advisor not a qualified individual under the ADA
June 21, 2022
Kathleen Kapusta, J.D.

The car dealership employee failed to show she could have performed her job’s essential functions with reasonable accommodations. Not only were the accommodations requested by a narcoleptic car dealership service advisor— including working virtually ...

DISCRIMINATION—RACE—M.D. Tenn.: Nooses, slurs, comments such as ‘[we] need slaves again to make America great again’ support hostile work environment claim
June 21, 2022
Brandi O. Brown, J.D.

“It is clear beyond any reasonable debate that a noose is severe physically and mentally threatening for anyone,” the court stated, “especially for African-Americans.” A longtime employee of the Nashville Electric Service (NES) will have the opportun...

EMPLOYEE LEAVE—N.D. Ind.: Medical billing employee fails to advance claim she was wrongly denied paid leave at outset of pandemic
June 21, 2022
Todd Harrison, J.D.

Although the court found the employee was wrongly denied paid leave under the FFCRA, the employer’s reliance on a since vacated definition of medical provider meant it was immunized under the Portal-to-Portal Act. A federal district court in Indiana ...

EVIDENCE, DISCOVERY—Tex. Sup. Ct.: Court erred in compelling discovery of drug-test records for UPS drivers not involved in fatal accident
June 21, 2022
Kathleen Kapusta, J.D.

The discovery compelled by the trial court was insufficiently narrowed and was overly broad in scope. Conditionally granting mandamus relief to UPS Ground Freight in a wrongful death suit arising out of a fatal multi-vehicle collision involving a UPS...

PENSION AND BENEFIT PLANS—U.S.: Supreme Court finds in plan’s favor in dialysis coverage dispute
June 21, 2022
Sheila Lynch-Afryl, J.D., M.A.

The Court concluded that a group health plan that provides limited benefits for outpatient dialysis, but does so uniformly for all plan participants, does not violate the Medicare Secondary Payer statute. The U.S. Supreme Court ruled in a health plan...

REMEDIES, DAMAGES—D.D.C.: Air Force captain denied religious exemption to COVID-19 vax mandate fails to get preliminary injunctive relief
June 21, 2022
Tulay Turan, J.D.

No liberty interest was at stake given that the captain was not forced to obtain the vaccine and at this point does not face court martial. A federal district court in the District of Columbia denied a preliminary injunction to an Air Force captain w...

STATE-LAW CLAIMS—U.S.: State law making it easier for federal contract workers at a nuclear site to get workers’ comp benefits declared unconstitutional
June 21, 2022
Marjorie Johnson, J.D.

The law violated the Supremacy Clause since it “explicitly treats federal workers differently than state or private workers, and imposes costs upon the Federal Government that state and private entities do not bear,” and federal immunity was not waiv...

USERRA, VETERANS—4th Cir.: Returning pilot with heart ailment offered equivalent position in flight operations
June 21, 2022
Ronald Miller, J.D.

The position the airline offered to the employee in Flight Operations on October 22, which he initially rejected, was equivalent to his escalator position as a line pilot. Following remand to recalculate damages for an American Airlines pilot whose r...

LABOR NEWS—Maryland Apple store employees vote to unionize in effort to improve working conditions
June 21, 2022
Patricia K. Ruiz, J.D.

In a letter to Apple CEO Tim Cook, the new union urged cooperation and collaboration. More than 100 employees of an Apple store in Towson, Maryland, who had recently organized into the Coalition of Organized Retail Employees (CORE), overwhelmingly vo...

LITIGATION NEWS, TRENDS—Tesla facing lawsuit alleging WARN Act violation following layoffs
June 21, 2022
Brandi O. Brown, J.D.

Former TESLA employees have filed a putative class action against the car manufacturer alleging violation of the WARN Act stemming from recent mass layoffs. According to a complaint filed in the Western District of Texas by two former Tesla employees...

SUPREME COURT NEWS—Petition by Domino’s Pizza asks Court to answer question it ‘expressly left open’ in recent FAA decision
June 21, 2022
Brandi O. Brown, J.D.

In its Saxon opinion, the petitioner contends, the Court left open a question regarding classes of workers who carry out duties removed from actual border crossings, and it argued that this petition offers the perfect opportunity to address it. In a ...

Labor & Employment Law

TOP STORY—7th Cir.: Senior global trade manager fails to revive False Claims Act retaliation claim against employer

She informed her employer that it owed higher tariffs on certain goods because they were likely from China and alleged she was harassed and fired as a result. After discovering that a product the company had imported had likely come from China, and i...

TOP STORY—7th Cir.: Senior global trade manager fails to revive False Claims Act retaliation claim against employer
LABOR PULSE—‘Return to the Office’ is a hot issue for organized labor. Is it also part of something bigger?
June 17, 2022
Dr. Jim Castagnera, Esq.

“You can look at these anti-RTO incidents as aberrations spawned at the tail end of an unprecedented plague year. Or you can see them as pieces of a larger, more sweeping social mosaic,” Dr. Castagnera writes. In this issue, Dr. Castagnera discusses ...

Note to Subscribers
June 17, 2022

Labor & Employment Law Daily will not publish Monday, June 20, in recognition of Juneteenth. We will resume publication on Tuesday, June 21, with the extensive coverage you’ve come to expect. Info

EXPERT INSIGHTS— A Job Applicant Is Not an Employee for Compensation Purposes
June 17, 2022
Kiran Seldon & Cassandra Frias

“Control over a drug test as part of the job application process is not control over the performance of the job.” Seyfarth Synopsis: The Ninth Circuit recently concluded that job applicants are not entitled to compensation for time devoted to pre-emp...

EXPERT INSIGHTS—Supreme Court Sides with Viking River Over Arbitration of California PAGA Claims
June 17, 2022
Jack Sholkoff & Zachary V. Zagger

However, the Court left open the possibility that California could adjust PAGA to permit representative claims to survive. On June 15, 2022, the Supreme Court of the United States ruled in favor of Viking River Cruises Inc. in a case over whether it ...

ATTORNEYS’ FEES—S.D.N.Y.: Employer not entitled to attorney fees under Title VII’s fee-shifting provision
June 17, 2022
Cecelia Scheeler, J.D.

The employer failed to show that an employee’s retaliation claim was so frivolous that an award of attorney fees was appropriate. A federal district court in New York denied an employer’s motion for attorney fees after it dismissed an employee’s clai...

CONTRACT CLAIMS—6th Cir.: Lower court abused its discretion in excluding after-acquired evidence of CEO’s relationship with subordinate in breach of contract claim
June 17, 2022
Justin Marcus Smith, J.D.

The company president and CEO was fired after telling other employees “Don’t be the last man standing.” Reversing in part the decision of the court below, the Sixth Circuit, in an unpublished opinion, found the lower court abused its discretion by ex...

DISCHARGE—Iowa App.: Employee’s wrongful discharge claim fails; no showing participation in IOSHA investigation was factor in termination
June 17, 2022
Ronald Miller, J.D.

In order to be the determining factor, the protected conduct must be the factor that makes the difference in the employment outcome. A trial court’s grant of summary judgment in favor of an employer against an employee’s claim for wrongful terminatio...

DISCRIMINATION—DISABILITY—E.D. Pa.: Lowe’s Home Centers employee working at ‘high-stress’ location advances claim of failure to accommodate a mental disability
June 17, 2022
Nadine E. Roddy, J.D.

The employer denied his request to transfer to a less stressful location, citing job performance issues. A manager who worked at a store in a “volatile” inner-city location raised material fact issues on his federal and state law claims of failure to...

DISCRIMINATION—RACE—D. Kan.: Jury to decide if extensive investigation into Black municipal employee’s residency was racially motivated
June 17, 2022
Marjorie Johnson, J.D.

Demographic data showing the employer investigated black employees disproportionately to white employees bolstered the employee’s claims. A Black employee who worked for a county public works department defeated summary judgment on his Section 1981 c...

DISCRIMINATION—RACE—W.D. La.: Questions remain regarding employer’s response to workers’ Confederate flags, slurs, ‘equal rights for southern whites’ statements
June 17, 2022
Brandi O. Brown, J.D.

Although the employer contended it took prompt remedial action regarding the employee’s complaint, basing that argument on HR’s response, there remained a factual dispute about whether, during the months the conduct was ongoing, the supervisor knew a...

LABOR—NLRB WEEKLY SUMMARY—Weekly summary of NLRB decisions
June 17, 2022
WK Editorial Staff

The Summary of NLRB decisions for the week of June 6 - 10, 2022 is now available on the NLRB’s website. The summary can be accessed by clicking this link . Cases: AgencyNews Labor NLRBWeeklySummary

RETALIATION—N.D. Ala.: Garbage truck ‘slinger’ fired after threatening to report PPP fraud advances FCA claim
June 17, 2022
Kathleen Kapusta, J.D.

According to the employee, his employer claimed more employees than it actually had on its PPP application, and it did not spend the PPP funds on payroll expenses. A garbage collection services employee who was fired one day after the company alleged...

WAGE-HOUR—N.D. Ala.: Restaurant employee’s motion for partial summary judgment on minimum wage, overtime claims denied
June 17, 2022
Todd Harrison, J.D.

There was enough evidence provided by the employer that, if believed, could negate the employee’s claims concerning minimum wage and overtime payments. An employee, who worked as a server at a pizza restaurant, brought this motion for partial summary...

WORTH NOTING—Recent developments involving sex discrimination
June 17, 2022
WK Editorial Staff

A roundup of recent decisions involving sex discrimination claims of interest to the labor and employment law community. 11th Cir.: HR manager who prevailed at trial to have back pay award reinstated. A female HR manager at a chicken processing plant...

AGENCY NEWS—FTC considering effect on workers in its investigation of Microsoft-Activision merge
June 17, 2022
Patricia K. Ruiz, J.D.

Chair Khan confirmed the agency’s commitment to investigating mergers, acquisitions with a focus on potential harm to workers. Senator Elizabeth Warren (D-Mass.) released a letter from Federal Trade Commission (FTC) Chair Lina Khan sent in response t...

DOJ NEWS—Two-year forced labor scheme nets nail salon owner 15 years in prison
June 17, 2022
WK Editorial Staff

The owner compelled the victim’s labor for nearly two years through psychological coercion, debt bondage, and violence. A federal judge in North Carolina has sentenced a 38-year-old Charlotte woman—the owner of a nail salon—to 15 years in prison and ...

DOL NEWS—New guidance focuses on Rehab Act Section 511, FLSA Section 14(c) subminimum wage requirements
June 17, 2022
Pamela Wolf, J.D.

A new lawsuit also alleges that the owner/operator of a Columbus, Montana, residential and working ranch facility for individuals with intellectual and developmental disabilities violated Section 511 requirements. On June 14, the DOL’s Wage and Hour ...

OSHA NEWS—Companies face $1.1M in penalties for violations, including in relation to a fatal fall
June 17, 2022
Nicole L. Chaney, J.D.

Two Dollar General stores alone account for $580K in proposed penalties. OSHA has separately announced $1,151,660 in proposed penalties and citations for safety violations by employers in New Jersey, Pennsylvania, New York, Wisconsin, and Ohio. The f...