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Employee Who Was Repeatedly Sniffed by Co-Workers and Fired For Swatting a Fly May Bring Retaliation Claim

Kollman & Saucier
11/26/2013
Retaliation, Sexual Harassment
Accusations of coworkers repeatedly “sniffing and hovering.”  An employee terminated allegedly because she slammed a door and “swatted a fly harder than necessary.”  Sounds like a great place to work, doesn’t it?  This is the alleged work environment in a recent lawsuit decided by the United States Court of Appeals for the Fifth Circuit. Royal v. CCC&R Tres Arboles, LLC,  No. 12-11022 (5th Cir. Nov. 21, 2013). Tonia Royal worked as...
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No Sex Harassment Liability When Female Prison Guard Exposed to Prisoners' Display of Sexual Materials

Kollman & Saucier
11/25/2013
Sexual Harassment
Is a correctional facility where inmates (but not employees) openly display sexually suggestive materials in violation of the facility’s policies a hostile work environment for a correctional officer?   No, according to a November 20, 2013 ruling by the Eastern District of California.  Daniels v. Cal. Dep’t of Corr. & Rehab., No. 2:10-cv-00003-MCE-AC (E.D. Cal. Nov. 20, 2013). The plaintiff in the lawsuit, Maria Aguilar, worked for the...
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The Supreme Court’s 2013-14 Labor & Employment Docket

Kollman & Saucier
10/16/2013
Supreme Court Decisions
The Supreme Court began its term last week with eight labor and employment cases on tap. Let’s take a look:  NLRB v. Noel Canning.  This is the case of the term. The Court will review the D.C. Circuit’s decision that President Obama’s January 2012 recess appointments of three National Labor Relations Board (NLRB) members were invalid because they did not occur between Senate sessions and did not fill vacancies that arose during such an...
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First Circuit Rules on FMLA Retaliation Rights for Employees Who Are Not FMLA-Eligible

Kollman & Saucier
10/14/2013
FMLA
The Family and Medical Leave Act (FMLA) grants eligible employees the right to take job protected leave.  An employer that denies an employee such rights may be faced with an FMLA “interference” claim.  The FMLA also precludes employers from discriminating or retaliating against employees for exercising those rights, and employers must defend against such “retaliation” claims as well. In the typical retaliation case, an employee subject to...
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NLRB Takes Another Hit

Kollman & Saucier
08/26/2013
Agency Activity, Labor Law
Even though we now have the first complete NLRB in over a decade, the fallout from the Obama Administration’s recess appointments at the Board  continue to percolate through the courts.  A recent decision from a federal district court in Washington state has denied the Board’s petition for an injunction against an employer because acting general counsel Lafe Solomon’s appointment was “improper” and he lacked the power to authorize an...
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Aren’t Unions Supposed to Bring People Together?

Kollman & Saucier
08/22/2013
Labor Law
The Tribune newspapers reported about a week ago on the current trend of unions raiding other unions for members.  This was the report:  “Mechanics for American Airlines may soon check their mail and find a strange package: airplane vomit bags.  They’re part of a campaign by the Transport Workers Union to fend off a challenge from a rival union: the Teamsters, which wants the mechanics to defect to its ranks. The bag is part of a Transport...
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Volunteer Firefighters are “Employees” for FMLA Coverage

Kollman & Saucier
08/20/2013
FMLA, Wage & Hour
In a real head scratcher, the Sixth Circuit has held 2-1 that volunteer firefighters are “employees” who are counted for, and therefore get protection under, the Family and Medical Leave Act.  Mendel v. City of Gibraltar, 2013 U.S. App. LEXIS 16922 (August 15, 2013).  The majority made this decision based on the “substantial wages” paid for the services performed. The City of Gibraltar, Michigan has approximately 25 volunteer firefighters...
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“Election of Remedies” Clause Constitutes Per Se Retaliation, Getting Employer and Union in Trouble

Kollman & Saucier
07/19/2013
Disability & Leave, Employment Discrimination, Labor Law
Employers sometimes have policies that, while they seem sensible, run afoul of the law.  One such area is in the investigation of discrimination claims.  Some employers have a policy that says something like “we will investigate a concern that you bring to our attention, but we will stop doing that if you go file with the EEOC.  Then we will let the EEOC investigate.  The reasoning behind the policy is that it will avoid a duplication of...
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Supreme Court Holds That “But-For” Standard Applies In Title VII Retaliation Cases

Kollman & Saucier
06/25/2013
Retaliation, Supreme Court Decisions
In one of the biggest employment cases this year, in a 5-4 decision the Supreme Court  held that the mixed-motive theory under employment discrimination laws cannot be used in retaliation claims. Univ. of Texas Sw. Med. Ctr. v. Nassar, 2013 U.S. LEXIS 4704 (June 24, 2013).   In Nassar, the Court addressed the federal circuit split that has developed following its 2009 decision in Gross v. FBL Financial Servs. Inc., 557 U.S. 168 (2009). A little...
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Passive Aggressive Disorder Not A Covered Disability

Kollman & Saucier
06/20/2013
Disability & Leave, Reasonable Accommodations/Undue Burden
A California federal district court has held that “passive-aggressive disorder” is not a disability under California’s anti-discrimination law,  a statute that defines disability more broadly than does the Americans with Disabilities Act Amendments Act (ADAAA).  Gliha v. Butte-Glenn Cmty. Coll. Dist,  2013 U.S. Dist. LEXIS 84266 (E.D. Cal. June 14, 2013). Gliha had been the executive director of development at the Community College for...
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