Labor & Employment Law

Current News

Labor & Employment Law

TOP STORY—U.S.: Eighth Circuit wrong to condition waiver of right to arbitrate on a showing of prejudice

In demanding proof of detrimental reliance before finding the waiver of an arbi­tration right, the Eighth Circuit applied a rule found no­where else. A finding of prejudice was not necessary to determine whether an employer had waived its right to co...

TOP STORY—U.S.: Eighth Circuit wrong to condition waiver of right to arbitrate on a showing of prejudice
EXPERT INSIGHTS—Court Finds California Board Gender Diversity Statute Unconstitutional
May 23, 2022
Christopher Auguste & Alan R. Friedman, Jamie Kocis, Shari Kahn Krouner, Kerri Ann Law, Todd E. Lenson, Thomas E. Molner, Jordan M. Rosenbaum, Steven Sparling, Samantha Alman & Nolan J. Robinson

“The court determined that the statute violated the equal protection clause of the California Constitution.” On May 13, the Superior Court of California, County of Los Angeles, issued a verdict following a bench trial that effectively struck down SB ...

EXPERT INSIGHTS—Tips For Employers When Drafting Employment Applications
May 23, 2022
George J. Theofanis

“This article discusses some tips for employers to consider when drafting their employment applications to avoid some of these legal pitfalls.” Employers trying to minimize risk of legal exposure must consider several critical issues when screening p...

DISCRIMINATION--DISABILITY—3rd Cir.: Disabled podiatrist disqualified from referring patients to Medical Marijuana Program cannot claim discrimination*
May 23, 2022
Chelsea N. Simms

Because podiatrists are not, by statute, qualified to refer patients to the Medical Marijuana Program, disabled podiatrist’s discrimination suit was dismissed. In a non-binding opinion, the Third Circuit upheld a district court’s dismissal of a New J...

DISCRIMINATION—RACE—S.D. Ohio: Physician discharged for affairs with subordinates fails to advance claims against hospital
May 23, 2022
Nadine E. Roddy, J.D.

The physician failed to sufficiently counter the hospital’s proffered legitimate reasons for his termination in the face of hundreds of text messages and damaging testimony by the subordinates. A discharged physician of Indian descent and Hindu faith...

LABOR—ARBITRATION—9th Cir.: District court order requiring Tribe to arbitrate with union affirmed, rejecting Tribe’s NLRA preemption argument
May 23, 2022
Robert Margolis, J.D.

The Tribe had contended that the NLRA preempted its compact with the State of California that required it to enter into a contract with the union that included an arbitration clause The Ninth Circuit has affirmed a district court’s judgment compellin...

LABOR—UNFAIR LABOR PRACTICES—3d: Charge that tweet by Federalist publisher threatened reprisals if employees tried to unionize unsupported
May 23, 2022
Ronald Miller, J.D.

The appeals court concluded that had the Board considered the tweet’s full context, it could not have concluded that a reasonable employee would view the tweet as a threat of reprisal. Substantial evidence did not support the NLRB’s finding that a su...

REMEDIES, DAMAGES—6th Cir.: No injunction pending appeal for Head Start grantees challenging COVID-19 vaccine mandate
May 23, 2022
Brandi O. Brown, J.D.

Below, the district court denied a preliminary injunction in the grantees’ challenge to the interim final rule and dissolved a temporary restraining order it previously granted. In an order, the Sixth Circuit declined to issue an injunction pending a...

WAGE-HOUR—EXEMPTIONS—N.D. Cal: After several days of testimony, court finds in Amazon’s favor on basis of executive exemption defense
May 23, 2022
Ursula Furi-Perry, J.D.

Amazon met its burden to show that, at all relevant times, its manager was subject to the executive exemption and was not entitled to overtime or to rest and meal periods. After a former shift manager at Amazon filed suit against the company, claimin...

WAGE-HOUR—OVERTIME—S.D.N.Y.; Motion to dismiss granted in part to L’Oréal on aiding and abetting, unpaid overtime claims
May 23, 2022
Todd Harrison, J.D.

The court found the employer could not be liable for aiding and abetting discrimination as the underlying violation would form the basis for that claim, but it did grant leave to amend the unpaid overtime claims. A makeup artist and skincare consulta...

DOL NEWS—Initiative renewed to continue focus on food service employers
May 23, 2022
Pamela Wolf, J.D.

The food service workers initiative combines enforcement with outreach and education to raise awareness of the types of pay practices and other actions by employers that most commonly violate the FLSA and other federal labor laws. The Department of L...

FEDERAL REGULATIONS—Comment deadline on OSHA’s proposed revocation of Arizona State Plan extended to July 5
May 23, 2022
Pamela Wolf, J.D.

Actions by the Arizona State OSHA Plan suggest that the state is either unable or unwilling to maintain its commitment to provide a program for worker safety and health protection, the DOL contends. The Labor Department is extending the deadline by 4...

NLRB NEWS—Security contractor will pay $220K to resolve alleged failure to bargain over contract changes
May 23, 2022
WK Editorial Staff

After taking over the federal contract, ISS Action Security purportedly made changes to health and welfare benefits and eliminated a pay category without bargaining with the union. On May 20, the NLRB announced that its Region 16-Fort Worth Regional ...

REPORTS—EEOC report finds representation of people with disabilities in federal sector improving
May 23, 2022
Pamela Wolf, J.D.

However, they are underrepresented in leadership roles, and disability discrimination complaints have risen. The EEOC released a new report showing that opportunities for persons with disabilities in the federal workforce continue to improve but that...

Labor & Employment Law

TOP STORY—Or. App.: Gentlemen’s club that hired 15-year-old as nude dancer loses bid to overturn $1M sexual harassment verdict

The appeals court affirmed the ruling below that “a reasonable young woman of that age would have found the performance of nude dancing for older men to be sufficiently severe to create a hostile, intimidating and offensive working environment.” An a...

TOP STORY—Or. App.: Gentlemen’s club that hired 15-year-old as nude dancer loses bid to overturn $1M sexual harassment verdict
EXPERT INSIGHTS—Delaware Becomes Latest State to Institute Paid Family and Medical Leave
May 20, 2022
Evandro Gigante & Laura M. Fant & Morgan J. Peterson

Employees are eligible to take leave under the Act once they have been employed by their employer for at least 12 months, and if they have at least 1,250 service hours in the 12-month period immediately preceding the leave. On May 10, 2022, Delaware ...

EXPERT INSIGHTS—Holding on, Loosely: Incentives for Employee Retention
May 20, 2022
Paul Bittner

Sign-on bonuses are typically subject to a policy that requires the employee to work a minimum number of weeks or months before they are paid the bonus or, the bonus is subject to a clawback provision. Let's talk about problems with retention bonuses...

ARBITRATION—Cal. App.: Instacart fails to compel arbitration of city attorney’s unfair competition enforcement action
May 20, 2022
Todd Harrison, J.D.

The court affirmed the lower court’s finding that the company failed to meet its burden to show a valid agreement to arbitrate claims between it and the people. In an enforcement action brought by the San Diego City Attorney, Instacart was denied a m...

COVERAGE, LIABILITY—E.D. Pa.: Office manager can aggregate employees of related companies and proceed with Title VII retaliation claim
May 20, 2022
Ronald Miller, J.D.

Given the degree of operational entanglement between two companies, as well as the shared ownership and leadership of the companies, the entities should be considered a single employer for Title VII purposes. An office manager who alleged sexual hara...

DISCHARGE—S.D. Ind.: Senior director fired due to lack of leadership over team’s failed project, not his disability or FMLA activity
May 20, 2022
Marjorie Johnson, J.D.

The employee failed to cast doubt on the employer’s assertion that the he was terminated based on the decisionmakers’ honest belief that he exhibited “an overwhelming lack of leadership and engagement and supervision.”. A senior director for Ascensio...

DISCRIMINATION—AGE—D. Kan.: Employee failed to show that age rather than job performance was basis for promotion denial
May 20, 2022
Cecelia Scheeler, J.D.

The employee received lower performance scores during his annual reviews than the younger coworkers who were promoted to positions above him. A federal court in Kansas granted summary judgment to Frito-Lay, Inc. in a lawsuit in which an employee clai...

DISCRIMINATION—DISABILITY—Ohio App.: Former AccuScripts employee with epilepsy revives state law bias claim on appeal
May 20, 2022
Brandi O. Brown, J.D.

The trial court erroneously applied an outdated definition of “substantially limits” to conclude that the employee failed to show she was disabled under state law. A state court of appeals in Ohio ruled that a lower court erroneously applied an outda...

INDIVIDUAL RIGHTS—5th Cir.: SEC ALJ proceedings ruled unconstitutional
May 20, 2022
Anne Sherry, J.D.

In a decision that could reshape enforcement throughout the executive branch, the Fifth Circuit held that in-house SEC proceedings for securities fraud were unconstitutional for at least two independent reasons. In a 2-1 opinion, a panel of the Fifth...

INDIVIDUAL RIGHTS—6th Cir.: Discharged teacher’s procedural due process claims against school district fail to advance
May 20, 2022
Nadine E. Roddy, J.D.

The complaint did not sufficiently allege a protected property or liberty interest in continued employment. A public school teacher without statutory tenure failed to plausibly allege infringement of his procedural due process rights in the terminati...

LABOR—NLRB WEEKLY SUMMARY—Weekly summary of NLRB decisions
May 20, 2022
WK Editorial Staff

The Summary of NLRB decisions for the week of May 9 - 13, 2022 is now available on the NLRB’s website. The summary can be accessed by clicking this link . Cases: AgencyNews Labor NLRBWeeklySummary

WORTH NOTING—Cases of note dealing with wage-hour issues
May 20, 2022
WK Editorial Staff

A roundup of recent decisions involving wage and hour issues of interest to the labor and employment community. D. Kan: Employee’s claims for unpaid bonus, and 401(k) contributions moves forward. An employee was granted his motion for summary for cla...

DOJ NEWS—Tampa Electric Company pleads guilty to willfully violating OSHA rule; explosion killed five workers
May 20, 2022
WK Editorial Staff

TECO admitted to willfully failing to hold a pre-job briefing; critical safety-related steps were not taken, including lowering the amount of coal entering a furnace, and shutting the unit down after a specified interval had lapsed. Tampa Electric Co...

DOL NEWS—Employers pay $1.2M in back wages, damages for FLSA, DBRA, visa infractions
May 20, 2022
Jonathan Anderson

The violations resulted from practices such as failing to pay prevailing wage, unlawfully deducting meal costs for H-2A workers, and paying straight time for all hours worked. The DOL’s Wage and Hour Division has separately announced its recovery of ...

DOL NEWS—May 25 listening session on OT regs scheduled for Southwest employees and their stakeholders
May 20, 2022
Pamela Wolf, J.D.

The DOL wants feedback on the appropriate salary level above which the exemptions for bona fide executive, administrative, or professional employees may apply, among other issues. On May 25, 2022, the Department of Labor will hold an online listening...

OFCCP NEWS—New CSAL includes 400 supply and service contractors and subcontractors
May 20, 2022
Pamela Wolf, J.D.

The OFCCP focused on industries that have experienced employment growth during the pandemic, including a large proportion of industries expected to receive significant federal investments for infrastructure and economic recovery. On May 20, 2022, the...

OSHA NEWS—More than $1M in penalties proposed after three employers fail to protect workers
May 20, 2022
Patricia K. Ruiz, J.D.

OSHA proposed penalties totaling more than $1M after workers were exposed to serious hazards in unprotected construction trenches and a tire plant. OSHA issued citations to three employers after they exposed workers to serious hazards, resulting in t...

Labor & Employment Law

TOP STORY—8th Cir.: University of Minnesota employee fails to revive ADA failure to accommodate claims

By the time she was fired, the employee had extensive work restrictions that would greatly limit her ability to perform clerical or administrative jobs. A district court did not err in granting the University of Minnesota’s motion for summary judgmen...

TOP STORY—8th Cir.: University of Minnesota employee fails to revive ADA failure to accommodate claims
EXPERT INSIGHTS—4 Reminders for Employers After a Texas BBQ Chain’s $900K Tip Pooling Mistake
May 19, 2022
Ted Boehm & Susan Maupin Boone

If you take a tip credit, you should also be aware of the requirements of the FLSA’s notorious “80/20” rule. Employers in the restaurant and hospitality industries know it’s a common practice to ask workers to share gratuities. Tip pools can promote ...

EXPERT INSIGHTS—Just a Helping Hand? The Potential Pitfalls of Hiring Unpaid Summer Interns
May 19, 2022
Brittany N. Clark

The DOL’s recent increased involvement in matters regarding classification of employees means that employers should exercise caution when hiring summer interns. Warm weather and summer are approaching, and so too is the end of the school year. As a r...

ATTORNEY’S FEES—Wash. App.: Neither collateral estoppel nor res judicata bars whistleblower claimant from recovering attorney fees and costs
May 19, 2022
Robert Margolis, J.D.

Employee brought direct suit for fees, rather than appeal of ALJ ruling denying certain portion of requested claimed fees. The Washington Court of Appeals has affirmed a trial court’s award of $161,415 in attorney fees and costs to an employee, rejec...

CONTRACT CLAIMS—W.D. Wis.: Employee’s discharge not ‘for cause’ under employment agreement, but may have been ‘by mutual agreement’
May 19, 2022
Marjorie Johnson, J.D.

The employer could argue the employee mutually agreed to terminate the contract early, but could not claim that he was terminated for cause or agreed to modify or waive the “for cause” requirement. An employee who claimed his employer breached his th...

DISCRIMINATION—AGE—5th Cir.: 60-year-old employee repeatedly passed over for promotion by AT&T fails to revive claims
May 19, 2022
Brandi O. Brown, J.D.

Although the decisionmaker made a statement about not promoting ‘tenured employees’ for the managerial positions, which the court agreed “logically appears to be a euphemism for age,” the court declined to revive the employee’s non-promotion claims. ...

EMPLOYEE LEAVE—D.D.C.: Employee working remotely from Virginia was not covered by DCFMLA under temporary COVID-19 amendment
May 19, 2022
Brandi O. Brown, J.D.

Although the D.C. Coronavirus Support Emergency Act amended the DCFMLA to cover employees working from outside of the district, it did so only for purposes of COVID-19-related leave. An asthmatic manager working for Exelon and the Potomac Electric Po...

INDIVIDUAL RIGHTS—1st Cir.: Fired union president who commented about budget cuts to transit revives First Amendment claim
May 19, 2022
Tulay Turan, J.D.

A juror could find the employee’s statements to Telemundo were essentially the same as ones a typical transit rider could have made. The First Circuit vacated a district court’s grant of summary judgment in favor of the Worcester Regional Transit Aut...

RETALIATION—S.D. Miss.: Cashier fired for complaining about deliveryman who forwarded himself a topless photo from her phone advances claim
May 19, 2022
Todd Harrison, J.D.

The convenience store employee was subject to a flurry of disciplinary actions despite having a clean record prior to her complaint regarding the beverage distribution driver. A federal district court in Mississippi granted partial summary judgment i...

AGENCY NEWS—New York’s DHR charges Amazon with denying reasonable accommodations to pregnant and disabled workers
May 19, 2022
Pamela Wolf, J.D.

Amazon allegedly permits worksite managers to override recommendations made by Accommodations Consultants, causing employees to be denied reasonable accommodations for disabilities and pregnancy-related conditions. According to the New York State Div...

DOJ NEWS—Staffing company pays civil penalty to resolve work authorization discrimination allegations
May 19, 2022
WK Editorial Staff

The Indiana staffing company will also post notices of workers’ rights under the INA’s antidiscrimination provision, train staff, and be subject to departmental monitoring for three years. Under a settlement agreement with the Department of Justice, ...

LABOR NEWS—Under historic agreement, U.S. Soccer to provide equal pay to players
May 19, 2022
Patricia K. Ruiz, J.D.

Men’s and women’s soccer teams will receive equal pay under two separate but identical collective bargaining agreements. The United States Soccer Federation (USSF), the United States Women’s National Team Players Association (USWNTPA), and the United...

Labor & Employment Law

TOP STORY—D.N.D.: EEOC, HHS enjoined from enforcing gender transition care requirements on Christian employers alliance members

The association, whose members are anonymous, challenged the federal entities’ implementation and interpretation of Title VII and Section 1557 of the ACA. A federal court in North Dakota granted a religious employer alliance’s motion for a preliminar...

TOP STORY—D.N.D.: EEOC, HHS enjoined from enforcing gender transition care requirements on Christian employers alliance members
EXPERT INSIGHTS—Colorado Overhauls Noncompete Law to Limit Enforcement to High Wage Earners, Impose Penalties for Employer Violation
May 18, 2022
Michael H. Bell & Roger G. Trim & Harrison J. Meyers

While prior courts may have saved an overly broad restrictive covenant by narrowing geographical or temporal scope, employers are now at risk of violating the statute simply by offering, entering into, or attempting to enforce an overly broad restric...

EXPERT INSIGHTS—EEOC, DOJ Warn Artificial Intelligence in Employment Decisions Might Violate ADA
May 18, 2022
Jennifer G. Betts & Danielle Ochs & Zachary V. Zagger

The EEOC highlights issues the agency thinks employers should consider to ensure such tools are not used to treat job applicants and employees in ways that the agency says might constitute unlawful discrimination under the ADA. The U.S. Equal Employm...

DISCRIMINATION—DISABILITY—D. Ariz.: Terminated software developer’s disability-related claims fail
May 18, 2022
Nicole D. Prysby, J.D.

The employer complied with the interactive process and the employee failed to show that he had a disability or that the supervisor making the termination decision knew of his medical conditions. A software developer terminated in a restructuring fail...

DISCRIMINATION—DISABILITY—E.D. Pa.: Design consultant fired after leave for foot surgery advances ADA, FMLA claims
May 18, 2022
Kathleen Kapusta, J.D.

The Ethan Allen employee was fired when she was temporarily unable to return to work after exhausting her FMLA leave. Although an Ethan Allen design consultant’s foot injury was not an actual disability under the ADA, as it was of limited duration, s...

DISCRIMINATION—SEX—D.P.R.: Aerostar employee’s sex discrimination, failure to promote, and retaliation claims advance, while EPA claim is left behind
May 18, 2022
Nicholas Kaster, J.D.

Direct evidence of discrimination and retaliation led the court to deny summary judgment on those claims. A former Aerostar employee’s suit, alleging that the employer discriminated and retaliated against her, and unlawfully terminated her employment...

DISCRIMINATION—SEX—HR director gets trial on claim management forced her to resign to avoid gossip about affair with married male colleague
May 18, 2022
Marjorie Johnson, J.D.

A jury would also decide whether her supervisor’s remarks that she would have no problem getting a job bartending because of her “tatas,” which he made to her individually and in front of her subordinates, created an HWE. An automobile dealership gro...

EMPLOYEE LEAVE—N.D. Cal.: Southwest lost bid to dismiss class action over policy allegedly penalizing flight attendants for taking FMLA leave
May 18, 2022
Marjorie Johnson, J.D.

The lead plaintiff was not required to allege that employees on equivalent types of leave were treated differently from employees on FMLA leave, but only that his taking of FMLA-protected leave constituted a negative factor in the decision to termina...

LABOR—ARBITRATION—Employee not entitled to more than FFCRA offered
May 18, 2022
WK Editorial Staff

Boiled to its essence, the Association was actually arguing that the grievant should not have been obligated to use any type of leave. An arbitrator denied an employee’s grievance to collect an additional 12 hours of pay. The employee had been schedu...

LABOR—BARGAINING—D.D.C.: NLRB may proceed with civil contempt against employer for bad-faith bargaining with union
May 18, 2022
Ronald Miller, J.D.

The current proceeding does not concern the merits of the union’s unfair labor practices complaint but concerns only whether or not the employer has complied with that judgment. The NLRB may proceed with a petition for civil contempt against an emplo...

TRADE SECRETS—N.D. Cal.: Tesla fails to obtain TRO in data theft suit against former employee
May 18, 2022
Robert B. Barnett Jr., J.D.

The court characterized Tesla’s TRO application as without merit, ruling that Tesla had failed to show a likelihood of success on the merits of its trade secrets misappropriation claims. In a suit by Tesla alleging that a short-term employee stole tr...

WAGE-HOUR—CLASS ACTIONS—Other litigation developments
May 18, 2022
WK Editorial Staff

A roundup of court actions granting conditional certification of FLSA collective actions and/or certification of Rule 23 class actions of interest to the labor and employment community. Call center employees alleged they were not compensated for work...

WHISTLEBLOWERS—D. Minn.: Sales representative fired after refusing to return to office during COVID-19 shutdowns cannot advance claim
May 18, 2022
Todd Harrison, J.D.

The court found the employee had not engaged in protected activity for reporting hydraulic systems manufacturer’s alleged violations of governor’s executive orders during the height of the pandemic. An employee’s calls to a work from home violations ...

DOL NEWS—WHD nets $872K in back wages, damages for FLSA, MSPA, visa violations
May 18, 2022
Jonathan Anderson

The infractions resulted from practices such as paying H-2B workers below the advertised rate, failing to pay travel costs for H-2A workers, improper payroll deductions, and employing children during school. The DOL’s Wage and Hour Division has separ...

EEOC NEWS—Hearing highlights challenges of marginalized workers in construction industry
May 18, 2022
Patricia K. Ruiz, J.D.

Witnesses working in the construction industry highlighted inequality, toxic workplace culture. The EEOC examined, in a May 17, 2022 hearing, severe and pervasive discrimination in the construction sector, particularly against women and people of col...

FEDERAL LEGISLATION—House passes legislation to fully fund WIOA, train 1M workers per year by 2028
May 18, 2022
Pamela Wolf, J.D.

The authorization for the WIOA expired in 2020; the U.S. labor force has grown by about half over the past 40 years, but federal spending on workforce development has fallen by two-thirds. On May 17, 2022, the House passed the Workforce Innovation an...

LITIGATION NEWS, TRENDS—Jindal moves for acquittal on obstruction conviction in wage fixing conspiracy case
May 18, 2022
Justin Marcus Smith, J.D.

The defendant’s attorneys argued that jury instructions left each juror individually free to determine which predicate acts, among a “grab bag,” amounted to obstruction. In the Department of Justices’ first ever wage fixing conspiracy case, defendant...

PRACTICE TIP—Advisory warns firms against hiring North Korean tech workers
May 18, 2022
Lauren Bikoff, MLS

The individuals pose as non-North Korean to obtain employment that helps fund the country’s nuclear weapons and ballistic missile programs, the advisory says. The Treasury Department, State Department, and Federal Bureau of Investigation have issued ...

Labor & Employment Law

TOP STORY—D. Ariz.: Software engineer’s HWE claim against Boeing advances with questions about effectiveness of corrective measures

Although the employer implemented some remedial measures, including setting up a trace inbox to receive anonymously emailed threats, there were questions about effectiveness stemming from its closure of its initial investigation and other delays. Boe...

TOP STORY—D. Ariz.: Software engineer’s HWE claim against Boeing advances with questions about effectiveness of corrective measures
EXPERT INSIGHTS—Check the Checklist! Four Considerations When Hiring Your First Employee
May 17, 2022
Brian R. DeMocker

From the start develop policies addressing various areas that will keep your business running smoothly once an employee joins the team and stick to them. So, you've started a business all by yourself. That is no small feat. You have chosen an awesome...

EXPERT INSIGHTS—Flexible I-9 Rules for Remote Workers Extended Through October
May 17, 2022
Brian J. Coughlin Jeffrey D. Winchester

It appears that ICE officials have acknowledged that some workers remain sensitive to COVID-19 risks, even as their employers return to business-as-usual. In a surprise move, federal immigration officials recently announced that they will permit remo...

DISCRIMINATION—D. Kan.: Employee gets trial on claims she was denied two promotions because she was 52-year-old masculine-presenting gay female
May 17, 2022
Marjorie Johnson, J.D.

An arguably less qualified 53-year-old male was purportedly pre-selected by the decisionmaker for one of the jobs, and a 26-year-old female employee credited for her enthusiasm was selected for the other one. A jury will decide whether a long-tenured...

DISCRIMINATION—DISABILITY—E.D. La.: BCBS employee who used CBD oil for migraines, and was fired for positive drug test, advances ADA claims
May 17, 2022
Kathleen Kapusta, J.D.

Despite being purportedly assured she would not lose her job based on the drug screen results, the employee was fired after a positive drug test. An IT business analyst for Blue Cross and Blue Shield (BCBS) who took CBD oil to treat her hemiplegic mi...

DISCRIMINATION—DISABILITY—S.D. Cal.: Run-of-the-mill COVID-19 infection does not qualify as disability under FEHA
May 17, 2022
Tulay Turan, J.D.

State regulations exclude from the definition of a FEHA disability those “conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis.” An employee who came to work with mild symptoms of COVID-19, was sen...

DISCRIMINATION—DISABILITY—Vt. Sup. Ct.: No notice of need for accommodation, no vacant light duty job, defeats disability discrimination, retaliation claims
May 17, 2022
Todd Harrison, J.D.

The molding company employee went on medical leave several times and each time returned with new job restrictions, until eventually the employer had no work for her, resulting in her termination. Initially employed as a “molder” and then as a “finish...

EMPLOYEE LEAVE—D. Neb.: Robotics programmer fired after missing work for broken toe advances FMLA interference claim
May 17, 2022
Todd Harrison, J.D.

The court found sufficient evidence for a reasonable jury to conclude that the industrial company interfered with the employee’s FMLA rights but granted summary judgment on his retaliation claim. After failing to return to work after breaking his big...

GOVERNMENT CONTRACTS—6th Cir.: Fraudulent inducement FCA claim against NASA contractor revived
May 17, 2022
Nicole D. Prysby, J.D.

The relator adequately pleaded that the contractor submitted falsely inflated estimates for facilities maintenance projects, resulting in the negotiation of fraudulently induced, exorbitant contract prices. The Sixth Circuit reversed summary judgment...

INDIVIDUAL RIGHTS—N.D. Ill.: School administrator’s failure to sign employment agreement for following year doomed due process claim
May 17, 2022
Marjorie Johnson, J.D.

Neither the superintendent’s verbal recommendation for the administrator’s continued employment nor the board’s vote to accept her employment agreement was sufficient to confer a property interest in continued employment. A former school administrato...

PUBLIC EMPLOYEES—D.D.C.: Religious challenges to federal vaccine mandate pending review not ripe for judgment
May 17, 2022
Leah S. Poniatowski, J.D.

First Amendment and Religious Freedom Restoration Act-based claims were not “constitutionally” or “prudentially” ripe for review. Eighteen federal civilian employees filed a lawsuit against President Biden vis-a-vis Executive Order 14043, which manda...

WAGE-HOUR—WORKING TIME—D. Me.: Live-in motel manager defeats employer’s affirmative defenses to wage claims
May 17, 2022
Ronald Miller, J.D.

The FLSA is clear that ensuring compliance with the statute’s overtime requirements is the employer’s obligation “and it is absolute.” An employee who worked as a live-in manager of a motel was granted her motion for summary judgment with respect to ...

EEOC NEWS—Commission’s pregnancy discrimination suit against supermarket settled for $75K
May 17, 2022
WK Editorial Staff

According to the agency, after sharing news of her pregnancy with her coworkers, the cafeteria worker was summarily fired. The EEOC announced a settlement in a pregnancy discrimination lawsuit against a Florida employer. Presidente Supermarket No. 31...

FEDERAL REGULATIONS—DHS and DOL release rule authorizing 35,000 additional H-2B visas for second half of FY 2022
May 17, 2022
WK Editorial Staff

The additional visas are intended to meet the demand for seasonal workers, particularly in light of the labor shortage. The Department of Homeland Security and the Department of Labor have released a rule authorizing an additional 35,000 H-2B tempora...