NLRB Postpones New Employee Rights Notice-Posting RequirementBy John Alan Doran
The National Labor Relations Board recently announced that employers will not be required to comply with its new employee rights notice-posting rule until January 31, 2012, roughly two months after its original posting deadline. The NLRB first proposed a notice-posting rule in December 2010. The proposed rule became final on August 30, 2011, and it originally required employers to post the new notice on or before November 14, 2011. The rule will require most private employers to post a notice to employees explaining their rights under the National Labor Relations Act to engage in concerted protected activity concerning wages and working conditions; to form, assist in the formation of, or join a union; to collectively bargain with their employers; or, to refrain from any of these activities.
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Employment Practices Liability Insurance – Buyer Beware!!!By Ted Olsen
Many prudent employers – knowing that employment discrimination claims can be filed against them by applicants, employees, and former employees, and administrative agencies suing on their behalf – buy employment practices liability (“EPL”) insurance. By doing so, they expect to reduce the risks of such claims and the expense of defending against them. A recent decision from a Tennessee federal district court, however, entirely denying an employer’s claims for indemnity and defense costs because a lawsuit was filed by the Equal Employment Opportunity Commission (rather than an individual plaintiff), reminds employers to be cautious when purchasing EPL insurance. Cracker Barrel Old Country Store, Inc. v. Cincinnati Ins. Co., Case No. 3:07-cv-00303 (M.D. Tenn. Sept. 21, 2011).
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Employer Did Not Fail to Make Reasonable Accommodation When it Denied a "Preferable" (But Not Required) Daytime Shift; Employee's Retirement was Responsible for Breakdown of Interactive Process
By Ted Olsen
The Fifth Circuit Court of Appeals ruled that the Americans with Disabilities Act does not require an employer to give an employee a daytime shift when such a shift is deemed by his doctors to be “preferable,” but not required. Moreover, the Court held that – by retiring only two weeks after the employer denied his request for daytime work – the employee was responsible for the breakdown of the interactive process, and therefore, the employer did not fail to make reasonable accommodation for the employee. READ MORE TOP
Employer's Mention of Employee's Pregnancy Complications in Termination-Related Papers Does Not Prove Pregnancy Bias
By Ted Olsen
When employers make gratuitous comments or references about an employee’s (or an applicant’s) age, gender, national origin, or race, for example -- in a performance evaluation, discharge papers, or the like -- the remarks often evidence a discriminatory bias. This is because such gratuitous comments and references have no pertinence to the employment action at the time. However, sometimes, such comments or references merely recite events and do not reveal any discrimination. The Tenth Circuit Court of Appeals, in Anderson v. The Cato Corp., No. 11-3003 (10th Cir. Oct. 27, 2011), recently addressed such a situation, when comments made in documents about an employee’s pregnancy merely described events resulting in her dismissal, not a biased reason for her dismissal.
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No FMLA Cause of Action for Supervisor's Alleged Exacerbation of Employee's Health Condition
By Ted Olsen
In a recent case under the Family and Medical Leave Act, Breneisen v. Motorola, Inc., No. 10-1982 (7th Cir. Sept. 2, 2011), the Seventh Circuit ruled that an employee could not recover damages from his employer under the FMLA for his supervisor’s alleged harassment when the plaintiff returned from a leave of absence, when it then resulted in the exacerbation of his health condition, necessitating another leave of absence.
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Timing of Employee Discharge Supports FMLA Retaliation and Interference Claims
By Ted Olsen
Most employers believe that an employee who is laid off for business reasons has no basis for a lawsuit. Certainly it is true that an employer can defend its layoff of employees for financial or business reasons, but calling an employee’s dismissal “a layoff” is no safe harbor. Moreover, the fact an employer lays off multiple employees at one time does not necessarily immunize an employee dismissal from legal attack. Shaffer v. Amer. Med. Ass’n, No. 10-2117 (7th Cir. Oct. 18, 2011), illustrates the point. READ MORE TOP
Employee Who Was Harassed for Taking FMLA Leaves During "Blackout Period" Stated FMLA Interference Claim, But No Individual Liability Against Public EmployerBy Ted Olsen
According to a new ruling from New Mexico federal district court, e mployers may not declare “blackout periods” during which time Family and Medical Leave Act leave requests will be denied or will be judged by stricter standards. Nor may employers harass employees who exercise their rights to take FMLA leaves. However, the FMLA does not support claims for individual liability against harassing supervisors of a public sector employer.
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EEOC Subpoena for Fitness Test Information Not Enforced By Ted Olsen
The Equal Employment Opportunity Commission, in its investigations of charges, often seeks records far beyond those relating merely to the charging party and his or her allegations. When an employer resists an EEOC subpoena, it typically results in a court action for the subpoena’s enforcement. Because of the relatively lenient legal standard applicable to such situations, in most instances, it often seems futile to fight an agency subpoena. However, in some cases, such as EEOC v. Loyola Univ. Med. Ctr., No. 11-cv-4456 (N.D. Ill. Oct. 13, 2011), courts recognize the sound business reasons for not permitting such discovery, and will rein in the agency’s over-reaching.
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Increase in Colorado Minimum Wage in the Works By Ted Olsen
On November 4, 2011, the Colorado Division of Labor will hold a public hearing on a proposal to increase the Colorado minimum wage to $7.64/hour, effective January 1, 2012. The hearing is a formality, as the Colorado Constitution, Article XVIII, Section 15 requires that the minimum wage periodically be adjusted (up or down), based on changes in the cost of living. READ MORE TOP
Idaho Court Extends Public Policy Protection to Constructive DischargesBy Ted Olsen
By now, most employers recognize the risk of a wrongful discharge claim arising from an employee’s dismissal for a reason that violates state public policy – typically, a discharge for the employee’s performance of a legal duty, the employee’s exercise of a legal right, or an employee’s refusal to perform an illegal act. When called upon to do so, courts have sometimes extended these public policy concepts to adverse employment actions other than discharges. (Some court decisions in Colorado and Arizona have questioned whether the public policy exception to at-will employment should be expanded to cover actions other than dismissals.) In the latest case to speak to the subject, the Idaho federal district court recently recognized a public policy cause of action for an employee who was not fired, but arguably was constructively discharged. Hurst v IHC Health Svs, Inc, 4:10-cv-00387-BLW (D. Idaho, Sept. 15, 2011).
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Best Lawyers in America, the oldest and most respected peer-review publication in the legal profession, named Ray Deeny and John Doran “Lawyers of the Year” for 2012. Deeny was honored in the area of Employment Law-Management in Denver, Colorado. Doran was recognized in the area of Labor Law-Management in Phoenix, Arizona. Only a single lawyer in each specialty in each community is named as the “Lawyer of the Year.” Click on the following to read more about these recognitions.
Ray Deeny Release
John Alan Doran Release
Our client, a large mining company, recently persuaded the District Court for the District of New Mexico to dismiss a case brought by the International Union of Operating Engineers, Local 953, the union representing the company's miners. The union sought to vacate an arbitration award upholding the client's right to assign so-called "underground" electricians to work on the surface of the mine – work purportedly reserved for "surface" electricians represented by the union. Based on the arguments of Patrick Scully and Matt Morrison, the court agreed that the arbitrator's 18 month delay in issuing the award did not provide a basis for vacating his decision and that any alleged lack of factual or legal analysis by the arbitrator did not render the award unenforceable. The court also held that the union's remaining claim of arbitral bias did not present a plausible claim for relief.
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