NLRB Finds Arbitration Provision Violative of NLRA

D.R. Horton, a homebuilder with operations in more than 20 states, began to require each new and current employee to execute a "Mutual Arbitration Agreement" (MAA) as a condition of employment, requiring arbitration of all claims on a individual basis, precluding them from filing joint, class or collective claims addressing their wages, hours, or other working conditions against the employer in any forum.  More ›

Department of Labor Announces Proposed Rules Expanding FMLA Leave

Today, the Department of Labor announced that it is issuing a notice of proposed rule-making to implement new statutory amendments to the Family and Medical Leave Act. The provisions specifically address military caregiver leave and airline flight crew employee leave. More ›

Significant Public Interest in Investigation, Discipline of School Teacher Outweighs His Right to Privacy

Though personnel files are typically afforded protection from inquiring minds, the rules are a little bit different when there’s a significant public interest at issue. That was precisely the case in this recent decision by the California Court of Appeals. More ›

Court Imposes Liquidated Damages Against Employer for FMLA Interference

Calculating Family and Medical Leave Act (FMLA) leave can be a daunting task. The law provides employers with various options for determining how the 12 weeks plays out, and also sets forth various notice responsibilities, both for the employee and the employer. This proved to be a problem for one employer, however, who, while providing its employee with FMLA leave, failed to properly notify him of how it was calculating his leave, which ultimately cost the employer big. More ›

D.C. Circuit Demonstrates the Danger of poor Documentation

In a decision released this week, the D.C. Circuit has proven that there is still truth to the old adage: document, document, document. The case, Hamilton v. Geithner, arose when a federal employee was passed over for a promotion. The begrudged employee felt that he had been far more qualified than the employee selected for the position. He brought suit against the IRS (his employer) under Title VII, calling its assertion that the selected employee had been more qualified a pretext, and alleging that the other employee (a Caucasian female) had actually been selected over him (an African-American male) based upon his race and gender. The district court granted summary judgment to the employer, finding that the disparity in the employees’ qualifications was “not significant enough to warrant an inference of discrimination.” More ›

Ninth Circuit Permits use of “Burden-Shifting” Test over “But For” Standard in ADEA Case

An Army employee filed suit against the Secretary of the Army and the United States Army Corps of Engineers alleging violations of the Age Discrimination in Employment Act ("ADEA") after he was not interviewed and his applications for two promotions were denied. The lower court relied upon the newer Gross v. FBL Financial standard of determining causation in an ADEA case, and found that the employee could not demonstrate that “but for” his age, he would have been given the position(s). More ›

Employees’ Delay in Complaining of Harassment lead to Dismissal of Claims

Five mid-level supervisors brought suit for racial and sexual harassment against their employer based upon purported physical and verbal misconduct by a higher-level supervisor. It turned out, however, that the employees had delayed almost eight months before reporting the misconduct, despite the fact that the employer had a “zero tolerance” policy regarding this type of misconduct, had policies in place which set forth the complaint process. The employer only learned of the supervisor’s alleged misconduct after the employees filed EEOC charges, and at that time, the employer undertook a prompt investigation. The employees claimed that they didn’t complain earlier because their complaints would have been ignored and/or because they feared retaliation. More ›

National Labor Relations Board Issues new Rules Designed to Speed up Union Elections

On December 21, 2011, the National Labor Relations Board (NLRB) issued final amendments to the procedures governing union representation elections. These amendments become effective on April 30, 2012. Employer groups have asserted that the changes allow unions to “ambush” businesses with union elections and force employees to make quick, uninformed decisions about whether to unionize. Union advocates, on the other hand, claim that the amendments will prevent unnecessary litigation and remove what they believe to be unnecessary delays in effectuating an “employee’s free choice” to unionize. More ›

State Claims for Wrongful Discharge Related to Facebook post not Preempted by Federal Law

A nurse posted complaints about high patient-to-nurse ratios at the hospital where she worked on her Facebook page, and asserted that the high ratio negatively impacted patient safety. The nurse was subsequently warned that she should think about her behavior because her actions—whether at work or at home — reflected on the hospital. Fearing termination, the nurse deleted the Facebook page. Five months later, the nurse was terminated for substandard customer service. She sued the employer in Kentucky state court, alleging that she was fired in retaliation for exercising her free-speech rights under the Kentucky Constitution. The hospital sought to remove the lawsuit to federal court on the basis that the nurse’s complaint involved claims for violations of federal law, including the National Labor Relations Act (NLRA), and that those federal laws preempted her complaint. The U.S. District Court for the Eastern District of Kentucky found that the nurse’s claim was firmly rooted in Kentucky state law and that neither the NLRA nor the Labor Management Relations Act preempted the claim. Accordingly, the case was remanded to the state court. Employers should be mindful that an employee’s public complaints about working conditions on social media networks may be protected by various state law protections that vary depending on the state of employment, which could in turn support a claim for wrongful discharge. Consequently, it is important to fully evaluate not only applicable federal laws when making an adverse employment decision, but also applicable state and local laws that may offer additional protections to an employee.

Moore v. Highlands Hosp. Corp., No. 7:11-cv-131 (E.D. Ky. Nov. 17, 2011)

Employer’s Lack of Knowledge of Employee’s Overtime Dooms FLSA Claim

A sewing manager at a Midwestern manufacturing company sued her employer for violations of the Fair Labor Standards Act (FLSA), alleging that the employer failed to pay her overtime. The former manager testified that she regularly arrived to work between 15-45 minutes prior to the official start of her shift and spent that time unlocking doors, turning on lights, turning on the compressor, punching-in, preparing coffee for the rest of the employees, reviewing schedules, gathering and distributing materials to her subordinates’ workstations and cleaning up workstations. Her timecards often reflected that she punched in early. The former manager was aware that her employer had a policy requiring employees to request pre-approval to work overtime, and on one occasion she had even reprimanded one of her subordinates for punching in too early. The former employee admitted that she never complained or made her employer aware that she needed to be paid for arriving early. The district court dismissed the claim finding that the employee’s pre-shift activities were preliminary and de minimis, and that her employer did not know that she was engaging in pre-shift work. The U.S. Court of Appeals for the Seventh Circuit disagreed with the district court’s conclusions about the preliminary and de minimis nature of the work. But it affirmed the dismissal because it agreed that the sales manager did not show that the employer knew, or had reason to know, that she was working before her shift. Although the employee had pointed to her timecards to impute knowledge on behalf of her employer, the court noted that punching in early does not necessarily mean that an employee is working pre-shift. More persuasive was the fact that the employee had weekly meetings with her managers where she failed to disclose the pre-shift work or to complain about improper compensation. Additionally, she was aware of the overtime policy and had enforced it. Employers should note that the mere promulgation of a rule against overtime work is insufficient to justify the nonpayment of overtime if an employer has the opportunity through reasonable diligence to acquire knowledge that an employee worked outside of his or her official work hours.

Kellar v. Summit Seating Inc., No. 11-1221 (7th Cir. Dec. 14, 2011)