Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “NLRB’s Expansive View: The Northwestern ‘Football’ Ruling and Why Inside Counsel Should Care,” that was published by InsideCounsel on November 13. In the article, the authors discuss how the recent NLRB decision in the Northwestern University case may indicate a broader approach to union rights and how the decision could impact all employers in the U.S..

On October 28, 2014, the National Labor Relations Board (the “Board”) again held that employers violate Section 7 of the National Labor Relations Act (“NLRA”) when they require employees to sign class action waivers as a condition of their employment.  The Board first so held in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012).  Although numerous courts have since rejected the Board’s reasoning in D.R. Horton, the Board nonetheless reaffirmed its position, meaning that employers who maintain such agreements will continue to face significant hurdles to their enforcement.

In Murphy Oil USA, Inc., 361 NLRB No. 72 (Oct. 28, 2014), the employer (“Murphy Oil”) required, as a condition of employment, that all employees sign a Binding Arbitration Agreement and Waiver of Jury Trial (the “Agreement”).  The agreement specifically provided:

Continue Reading NLRB Won’t Budge on Class Action Waivers: Finds that Murphy Oil’s Mandatory Arbitration Agreements Violate the NLRA

Some employers believe that an employee who is out on FMLA cannot be disciplined or terminated. More savvy employers know that such a broad application is not quite accurate, as an employee’s request for or taking FMLA leave does not give the employee any greater rights than if the employee were actively at work. This case, here, is a prime example.

What happened?  The employee requested leave for birth of her child, and the leave was granted. While on leave, however, the employee visited the employer’s premises. While there, she took home 6 cases of sample baby formula (yes, the employer produces baby formula), and doing so was a clear policy violation (think – stealing). A co-worker reported the misconduct, and an investigation resulted in the employee’s termination. The employee then sued, claiming that she was terminated while on FMLA leave and thus the termination was unlawful. Continue Reading Termination During FMLA Leave Not Unlawful

Whether the plaintiff is actually engaged in “protected conduct” is always a key question when defending a retaliatory discharge claim. This certainly is true when such a claim is brought under the Sarbanes-Oxley Act (SOX).

On August 8, 2014, the Second Circuit Court of Appeals clarified the nature of the protected activity a successful SOX retaliatory discharge plaintiff must plead in order to survive a motion to dismiss. See Nielsen v. AECOM Technology Corp., Case No. 13-235-cv (August 8, 2014, 2nd Circuit).

Nielsen, a fire engineering manager, alleged that he was fired in retaliation for threatening to resign if the company continued to tolerate the conduct of one of his subordinates whom he claimed was allowing fire safety designs to be marked as approved without the subordinate actually having reviewed the plan. Continue Reading Second Circuit Clarifies “Protected Activity” for Sarbanes-Oxley Act Retaliatory Discharge Claims

Savvy employers know that legal and regulatory trends are toward candid and effective communication. Think interactive process under the ADA. But, at times, this same rule applies to employees. Here, an employee who refused to read the Rosary with a resident was terminated. The refusal was considered failing to perform a requirement of her job, since the resident requested that the prayer be read to her. This was the fifth incident in her 13 months of employment.

The employee later sued for religious discrimination and won a jury verdict. The Fifth Circuit reversed however. Why? Because the employee never claimed to a manager, before the termination decision, that the request to read the prayer was against her religious beliefs. Rather, the managers involved in the decision knew only of the employee’s refusal to perform the job duty, not that the refusal was tied to her religious beliefs. This decision is similar to the Tenth Circuit’s decision, written about here, regarding an employee’s request to wear a head covering but without having invoked the religious basis for the request.

Interestingly, in that Tenth Circuit case, the plaintiff was the EEOC, not the individual employee, and the EEOC recently asked the Supreme Court to grant permission for an appeal.

On June 18, 2014, we reported that President Obama would sign an Executive Order prohibiting federal contractors from discriminating against LGBT individuals on the basis of their sexual orientation or gender identity.  As promised, on July 21, Obama issued the Executive Order.  This presidential action amended existing Executive Order 11,246, which applies to federal contractors, by adding sexual orientation and gender identity to the list of classes protected from employment discrimination.  This move also amended existing Executive Order 11,478 by explicitly prohibiting gender identity discrimination by federal government agencies for the first time.   Continue Reading UPDATE: President Obama Poised to Sign Executive Order Barring Discrimination Based on Sexual Orientation

In a landmark decision, the United States Supreme Court ruled yesterday that President Obama’s three recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.  Click here for the ruling.  President Obama had relied upon the Constitution’s Recess Appointments Clause to appoint three members of the NLRB.  The Court ruled, however, that the “pro forma” sessions in January 2012 when the recess appointments were made were not truly a “recess” of the Senate within the meaning of that provision of the Constitution.  Since the NLRB was not lawfully appointed, its decision that the employer in the case, Noel Canning, had violated the law was not a proper finding and was not enforceable against the employer. Continue Reading Supreme Court Rules Recess Appointments Unconstitutional – What Does It Mean?

The Labor Department announced today its plans to propose new regulations on the definition of “spouse” under the FMLA.  The new definition of “spouse” will include a legally married same-sex spouse, regardless of the employee’s state of residence.  This rule, though not unexpected, is a change from an August 2013 “Fact Sheet” issued by the Labor Department that relied upon the definition of marriage in the employee’s state of residence.

By this rule, if adopted, employers in all states would be required to provide leave to legally married same-sex spouses even if the state of the employee’s residence or the state of the employer’s business does not recognize same-sex marriage.  It is worthy to note, however, given the Supreme Court’s highly publicized decision in Windsor, that the various federal challenges to the laws of those states not recognizing same-sex marriages will be successful to erode, and ultimately to eliminate, all of the state laws and regulations that do not recognize same-sex marriages.

The White House and the Department of Labor (DOL) released a proposed rule that would raise the minimum wage for employees under federal contracts from $7.25 to $10.10 per hour, a 39% increase.  The proposed rule implements Executive Order 13658, Establishing a Minimum Wage for Contractors, which was signed by President Obama on February 12, 2014.  That order applies to new and renegotiated contracts starting January 1, 2015. Continue Reading DOL Publishes Rule to Raise Minimum Wage to $10.10 on Federal Contractors

The White House has announced that President Obama will sign an executive order prohibiting federal contractors from discriminating against individuals on the basis of sexual orientation or gender identity, a move the White House hopes will pressure Congress into passing legislation banning employment discrimination against the lesbian, gay, bisexual and transgender (LGBT) community. The Senate passed the Employment Non-Discrimination Act in November 2013, but the legislation stalled in the House.

Government contractors already are prohibited from considering race, gender, religion or national origin when hiring employees. This executive order will provide the first specific anti-discrimination protections for the LGBT community and is estimated to apply to approximately 20% of the U.S. workforce (14 million workers). The White House has not indicated when President Obama will sign the executive order and the specific language has not been released, however, the order likely will be in line with current measures banning federal contractors from discriminating against employees on the basis of race, religion, and national origin.

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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