Seventh Circuit Confirms that Employees may not Demand a Specific Accommodation for Disabilities

In September of 2010, Khoury Enterprises, a firm operating Dairy Queen franchises in Indianapolis, hired Joshua Bunn, who is legally blind. Hourly employees at Khoury's stores typically were required to rotate between various stations, including preparing food, working the cash register and maintaining the dining area. Bunn, however, was unable to perform certain duties because he could not read the ingredient labels or monitors displaying orders. Accordingly, the store's manager scheduled Bunn exclusively in the "Expo" department, where he was responsible for delivering food to dine-in customers and keeping the store and dining area clean. During the winter months, the store was forced to close on several occasions due to holidays and inclement weather, which resulted in Bunn working fewer hours. Eventually, he resigned, believing he could work more hours elsewhere.

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Supreme Court Finds NLRB Recess Appointments were Invalid

On January 4, 2012, when Congress was out of session for a three-day period, President Obama appointed three members to the National Labor Relations Board pursuant to the Recess Appointments Clause of the Constitution. Thereafter, the NLRB, including the newly appointed members, issued a ruling finding that Pepsi-Cola distributor, Noel Canning, unlawfully refused to execute a collective-bargaining agreement with a labor union. Noel Canning challenged the ruling on the grounds that the three members appointed by President Obama were invalidly appointed and that the NLRB did not have authority to act when it issued its order.    More ›

Supreme Court Strikes NLRB Recess Appointments

The United States Supreme Court has struck down President Obama's controversial 2012 nominations to the NLRB, holding that the President violated the Constitution by using his recess appointments power when the Senate was still in session.

The ruling in NLRB v. Noel Canning calls into question hundreds of mostly pro-union NLRB decisions rendered by the improperly constituted board. It also will limit the ability of future presidents unilaterally to fill agency vacancies with highly partisan appointees. More ›

California Supreme Court Allows Class Waivers in Arbitration Agreements, but not PAGA Waivers

Iskanian was a chauffeur for CLS Transportation, a limousine company. While employed, he signed an agreement to resolve all employment-related disputes in individual arbitration, with no possibility of a class or representative action. After his employment ended with CLS Transportation, in or around 2006, Iskanian filed a class action and representative suit under California's Private Attorney General Act (PAGA) alleging various wage and hour claims against his former employer.  CLS Transportation moved to compel arbitration pursuant to the agreement. More ›

Trucking Company did not Violate ADA or the FMLA when it Fired an Alcoholic Driver

An employee worked for a trucking carrier for several years before he was diagnosed with alcoholism in 2010 and sought leave to obtain treatment. The employee’s request for leave was approved. After being out of work for approximately one month, the employee sought to return to work. The trucking carrier decided that the employee was no longer qualified to be a commercial motor vehicle driver, pursuant to applicable regulations and company policy. As such, the employee’s employment was terminated.

The Department of Transportation's (“DOT”) regulations prohibit anyone with a “current clinical diagnosis of alcoholism” from driving commercial motor vehicles. 49 C.F.R. § 391.41(b)(13). In addition, the trucking carrier had a company policy prohibiting the employment of anyone as a commercial motor vehicle driver if he or she had been diagnosed with alcoholism in the past five years.

The employee sued his employer, asserting claims under the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act ("FMLA"), arguing that the trucking carrier discriminated against him due to his disability — alcoholism — and that the trucking carrier interfered with his FMLA rights and retaliated against him for exercising his FMLA rights. The district court disagreed and granted summary judgment in favor of the trucking carrier. The U.S. Court of Appeals for the Eleventh Circuit affirmed.

The court heldthat the employee was not a “qualified individual” under the ADA because he was not physically qualified to drive under DOT regulations. The Court observed that it is the employer's burden to ensure that a driver meets all DOT physical qualification standards. 49 C.F.R. § 391.11(a). Because the DOT does not permit anyone with a “current clinical diagnosis of alcoholism” to drive, the employer must determine whether someone suffers from such a diagnosis. The trucking carrier determined that the employee was not physically qualified to drive a commercial motor vehicle, and neither the district court nor the Eleventh Circuit found fault with that conclusion.

The Eleventh Circuit also upheld the dismissal of the FMLA interference and retaliation claims. The employee’s FMLA interference claim failed because he would have been discharged regardless of whether he took FMLA leave. The retaliation claim failed because he could not show that his termination was related to his FMLA leave.

This case is important to DOT-regulated employers as it shows that the courts will uphold an employer's judgment concerning a driver's physical qualifications to drive a commercial motor vehicle.

NLRB ALJ: Employer's Interim Grievance Procedure need not Provide Opportunity for Arbitration

In March 2012, employees of an EMS ambulance service certified a new union to replace their existing representative. At the outset of the negotiations regarding a new collective bargaining agreement, the parties agreed that, until a new CBA was signed, they would utilize two of the three grievance steps identified in the prior union's CBA — the third and final step, arbitration, would not be available until a new contract was signed. Subsequently, the employer terminated various employees for misconduct and poor performance and refused to arbitrate pursuant to the parties' agreement. The union filed an unfair labor practice charge based upon the refusal to arbitrate, and the employer responded that the union should be bound by its agreement to an interim grievance process that excluded arbitration.   More ›

Schoolhouse Shock!: California Court Finds Public Teacher Tenure Unconstitutional

A Silicon Valley-based student advocacy group brought a lawsuit on behalf of nine students against the State of California and various other state agencies and officials and local public school districts, claiming that California's teacher tenure and dismissal laws make it almost impossible to terminate the employment of low-performing teachers. The group further claimed that because a disproportionate share of underperforming teachers are placed in schools having a majority of low-income or minority students, the inability to dismiss teachers violates the equal protection clause of the California constitution, because by preventing schools from being able to terminate underperforming teachers, minority and low-income students are being denied equal access to education. The state and teachers' groups opposed the lawsuit, arguing that the tenure rules are necessary to preserve academic freedom and attract talented individuals to a teaching profession that is generally low-paying. More ›

Employment Discrimination Plaintiff Cannot Change Legal Theories at Trial

In Rosenfeld v. Abraham Joshua Heschel Day School, Inc., the Second Appellate District held that a plaintiff whose pleadings alleged intentional employment discrimination could not assert a disparate impact theory for the first time at trial.

The case highlights the distinction between “disparate treatment” and “disparate impact” theories under California’s Fair Employment and Housing Act (“FEHA”). Disparate treatment is intentional discrimination against an individual on prohibited grounds, such as race, sex or another protected category. More ›

Rite aid Cashiers can Proceed with Class Action

In Hall v. Rite Aid Corp., the Fourth Appellate District reversed the trial court’s decertification of a putative class of cashiers who challenged their employer’s policy of requiring them to stand while checking out customers.

The case is the latest in a series of California appellate opinions holding that a determination on class certification must focus on the plaintiff’s theory of liability — not the merits of the underlying allegations. More ›

Joint and Successor Liability may be Imposed Against Predecessor and Successor Employers for FLSA Violations

Employee was hired as an underwriter by mortgage company A and was immediately assigned to a training led by a representative of a mortgage company B. Shortly thereafter, employee and many of her colleagues were asked by their supervisors to fill out job applications for mortgage company B. Despite the transfer, employee performed the same duties, received the same pay and had the same supervisors as when employed by mortgage company A. Some of employee’s colleagues continued to receive paychecks from mortgage company A. More ›