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State Attorneys General Challenge EEOC Guidance on Background Checks

Kollman, Saucier, & Jackson
08/01/2013
Agency Activity, Employment Discrimination, State Law
Over the past two years, the Equal Employment Opportunity Commission has taken an increasingly narrow view of when employers can use criminal background information to exclude a job applicant.  In April 2012, the EEOC  issued  Enforcement Guidance No. 915.002, which  suggests that employers must  conduct an individualized assessment of each job applicant’s criminal background and show “a demonstrably tight nexus” between the criminal...
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Fired Employee Files Suit Claiming Obesity Is A Disability Under ADA

Kollman, Saucier, & Jackson
07/26/2013
Disability & Leave, Employment Discrimination
A former employee filed suit in federal court against a Missouri car dealership last week claiming he was fired for being severely obese.  Whittaker v. America’s Car-Mart, Inc., No. 1:13-cv-00108, U.S. District Court for the Eastern District of Missouri. Plaintiff Joseph Whittaker claims that America’s Car Mart, Inc. violated the Americans with Disabilities Act (ADA) when it fired him because of his weight, taking the position that his severe...
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Thomas Perez Confirmed As Labor Secretary; New NLRB Nominees Named

Kollman, Saucier, & Jackson
07/23/2013
Agency Activity, Labor Law, Political Appointments
On July 18, 2013, the Senate confirmed Thomas Perez as labor secretary with a party-line vote of 54-46.  Perez is currently the head of the Department of Justice Civil Rights Division and will replace Hilda Solis, who resigned from the top labor post in January 2013.  Following his nomination in March, Republicans aggressively criticized Perez, citing to his alleged involvement in a quid pro quo arrangement between the DOJ and the City of St. Paul...
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Male Employee Who Wears “Girly” Shirts May Have Sexual Harassment Claim

Kollman, Saucier, & Jackson
07/19/2013
Employment Discrimination, Sexual Harassment, State Law
A federal district court in California recently held that a male state investigator teased for wearing “girly” clothes stated a claim of sex-based harassment in violation of Title VII and California’s Fair Employment and Housing Act.  Felix v. Calif. Dep’t of Developmental Servs., No. 1:13-cv-00561 (E.D. Cal. July 12, 2013).  Robert Felix worked as a special investigator at a California state agency.  In April 2013, Felix and his fellow...
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Fifth Circuit Takes Limited View of Dodd-Frank Whistleblower Protections

Kollman, Saucier, & Jackson
07/18/2013
Whistleblowers
Over the past two years, several federal courts have wrestled with the scope of whistleblower protections under the Dodd-Frank Act (“DFA”), codified at 15 U.S.C. §78u-6(h).  To date, all of the district courts to address the issue have held that an employee claiming whistleblower retaliation in violation of DFA need not make a report to the Securities and Exchange Commission to be protected by DFA.  As a result, employees alleging that they...
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Fourth Circuit Upholds The Affordable Care Act Employer Mandate

Kollman, Saucier, & Jackson
07/17/2013
Employee Benefits
On July 11, 2013, the Fourth Circuit dismissed a constitutional challenge to the employer mandate established by the Affordable Care Act (“ACA”)), holding that it was a valid exercise of Congress’s power under the Commerce Cause.  Liberty University Inc. v. Lew, No. 10-2347 (4th Cir. July 11, 2013).  The ACA’s employer mandate requires employers with 50 or more employees to provide health care coverage to their employees and dependents, or...
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Failure To Comply With The FMLA’s Recertification Procedures Ruins Employer’s Summary Judgment Chances

Kollman, Saucier, & Jackson
07/12/2013
FMLA
In Hansen v. Fincantieri Marine Group, LLC, (E.D. Wis. June 14, 2013), the employee suffered from depression and had  episodic flare-ups that prevented him from working.  He was approved for intermittent FMLA leave based on his  certification from his health care provider which advised the employee may experience “about four episodes every six months” and which would incapacitate him “two to five days per episode.” Within the first two...
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Supreme Court To Review Constitutionality Of Recess Appointments To The NLRB

Kollman, Saucier, & Jackson
07/05/2013
Labor Law, Supreme Court Decisions
As the recent Supreme Court term came to an end, employers were greeted with a couple of favorable decisions.  On June 24th, the Court held that a “but-for” standard applies in Title VII retaliation cases and that to be a “supervisor” under Title VII, an employee must have the power to implement tangible employment actions. That same day, the Supreme Court agreed to review the D.C. Circuit’s opinion in Noel Canning Div. of Noel Corp. v....
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Adminstration Delays Effective Date of ACA Penalties to 2015

Kollman, Saucier, & Jackson
07/03/2013
Employee Benefits
On July 2, 2013, the United States Department of Treasury announced in a blog post that the Obama administration will delay key provisions of the Affordable Care Act.  The postponement will delay the employer shared responsibility payment requirements under Code Section 4980H until 2015. The result of this delay is that employers of 50 or more full-time equivalent employees (those working 30 or more hours per week) have another year before they will...
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Law School Has Right To Decide The Qualifications It Wants In Its Professors

Kollman, Saucier, & Jackson
07/02/2013
Age Discrimination, Employment Discrimination, Public Sector Employment Law
Earlier this year, the Court of Specials Appeals found in favor of the University of Baltimore School of Law (UB) in an age discrimination suit brought by Donald Dobkin.  Dobkin v. Univ. of Balt. Sch. of Law, 210 Md. App. 580 (2013). In 2009, Dobkin applied to become a professor at the University.  Instead of hiring the then 56-year-old Dobkin (or hundreds of other applicants), UB hired a 32-year-old female for the position.  Dobkin then sued the...
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