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Fourth Circuit Rejects FLSA’s “Manager Rule” in Title VII Cases

Kollman & Saucier
08/12/2015
Employment Discrimination
Neil DeMasters was an employee assistance program (EAP) consultant for the Carilion Clinic’s behavioral health unit. His job was to listen to an employee’s concerns and suggest ways in which the employee might try to resolve them.   After five years in this job, DeMasters was fired in the aftermath of advising (and supporting) an employee who complained about sexual harassment by another employee. DeMasters sued, claiming that he was fired in...
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Ledbetter Act Does Not Extend Time to Bring Demotion Claims

Kollman & Saucier
07/31/2015
Employment Discrimination
In litigation, as in many other parts of life, timing is everything. In a post earlier this week, we discussed the issues surrounding lawsuits filed after the resolution of EEOC and state agency charges. A similar issue came before a New York federal court recently and was met with a similar outcome: a plaintiff who files a claim too late has nobody but him or herself to blame. The Lilly Ledbetter Fair Pay Act of 2009 (“Ledbetter Act”) was...
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Plaintiff Bears Burden of Maintaining Correct Address with EEOC

Kollman & Saucier
07/29/2015
Agency Activity, Employment Discrimination
An individual who files a charge of discrimination with the EEOC or similar state agency is required to provide the agency with his or her contact information, including a mailing address and phone number, so that the agency can notify him or her of any developments, including the outcome of the charge. Current regulations require the individual to notify the agency “of any change in address and . . . any prolonged absence from that current address...
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NLRB Has Jurisdiction Over Little River Band

Kollman & Saucier
06/11/2015
Labor Law
For those of us of a certain age, the “Little River Band” conjures memories of a ‘70’s light rock band and the song “Reminiscing.” And yes, they are still touring (they will be in Annapolis, Maryland in November). But that is not this case. We’re talking here about a Sixth Circuit decision, 2-1, that held the NLRA applies to a Michigan casino run by a Native American tribe on Indian land that employs mostly people who are not tribal...
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Hey NLRB: WTF? That Means “Why The Foolishness?” What Did You Think it Meant?

Kollman & Saucier
06/08/2015
Business Law
You may recall a April 7, 2015 blogpost where I discussed the NLRB’s decision that an employee who called his boss a “motherfucker” and wrote on Facebook to “f--k his mother and his entire f--king family!!!!” had engaged in protected activity under the National Labor Relations Act (NLRA) since that “colorful” language was related as a part of a union campaign. Pier Sixty, LLC, 362 NLRB No. 59 (March 31, 2015). Just when you thought it...
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Title VII Retaliation Claims Hinging On Circumstantial Evidence Remain Governed By McDonnell Douglas

Kollman & Saucier
05/29/2015
Employment Discrimination, Retaliation
Two years ago, in University of Texas Southwestern Medical Center v. Nassar, the Supreme Court heightened the causation standard for employees claiming retaliation based on direct evidence (such as explicitly discriminatory statements made by supervisors) under Title VII.  Plaintiffs must prove "but for" causation. What about the situation in which an employee relies solely on circumstantial evidence? Does Nassar’s “but-for” standard apply to...
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Fourth Circuit Orders Racial Class Action Claim at Steel Plant to Proceed

Kollman & Saucier
05/26/2015
Class Actions, Employment Discrimination, Race Discrimination
Nearly eight years after the lawsuit was first filed, the Fourth Circuit ordered in Brown v. Nucor Corporation that workers claiming systemic racial discrimination in a South Carolina steel plant’s promotion decisions be permitted to proceed as a class action. The Nucor steel plant in South Carolina employs just over 600 workers in six production departments. There were a total of 71 black employees at the plant, but only one black supervisor. In...
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No Telework Accommodation For IBS Says En Banc Sixth Circuit

Kollman & Saucier
04/13/2015
Disability & Leave, Reasonable Accommodations/Undue Burden
Last year the Equal Employment Opportunity Commission (EEOC) tooted its horn with a victory when a three-judge panel on the Sixth Circuit held (2-1) that Ford Motor Company might have violated the Americans with Disabilities Act (ADA) by failing to permit an employee with Irritable Bowel Syndrome (IBS) from teleworking up to four days a week.  Reversing that decision, the en banc Sixth Circuit held (8-5) that there was no ADA violation because...
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Stage One Kidney Disease Not FMLA “Serious Health Condition”

Kollman & Saucier
04/10/2015
FMLA
The Eighth Circuit has held that stage one kidney disease is not a serious health condition under the Family and Medical Leave Act (FMLA). Dalton v. ManorCare of West Des Moines IA, LLC, 2015 U.S. App. LEXIS 5536 (8th Cir. Apr. 7, 2015). Lucinda Dalton worked for a skilled nursing facility in Iowa when she was diagnosed with stage one kidney disease. She had significant weight gain and an edema. Following a series of doctor visits in January 2011,...
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F*** My Boss; F*** his mother; F*** his family… Fuggetaboutit

Kollman & Saucier
04/07/2015
Labor Law, Social Media, Union Activity
So, what’s the big deal?   That doesn’t get you fired. At least that’s what the NLRB says. As long as you say it on Facebook during a union campaign. And you’re a union supporter. And you add “Vote YES for the union.” Pier Sixty, LLC, 362 NLRB No. 59 (March 31, 2015). Hernan Perez worked for Pier Sixty, a catering company in New York City. Some employees wanted a union, “in part because of concerns that management repeatedly treated...
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