The Employment Brief

Section 215(a)(3) of the Fair Labor Standards Act (FLSA) makes it unlawful for a covered employer to "discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding." In Minor v. Bostwick Laboratories, Inc., (4th Cir., No. 10-1258, 1/27/12), the U.S. Court...

In 2005, James Hazen was a partner in a New York law firm.  One of the perks of being a partner was a corporate credit card, which Hazen could use for personal reasons, so long as he paid for the charges.  In December 2005, the firm’s accounting department reported that Hazen failed to submit any itemization of personal charges for the fourth quarter.  Rather than give an explanation, Hazen stopped going to the office, claiming that he needed to...

In August 2011, the National Labor Relations Board’s Acting General Counsel had issued a report on employee use of social media and online communications, and under what circumstances such behavior can be protected concerted activity under the NLRA.  That report also set forth the NLRB’s position on permissive and over-reaching language in employer social media policies.  That report was based on an analysis of the cases that had been decided...

A heating and air technician, who suffered from depression, advised one of the company owners of this fact in conjunction with a discussion regarding a customer complaint filed against the  tech.  The owner never made any comments to anyone regarding the depression or discussed it as an issue.  Shortly after the conversation, the owner did instruct his shop manager to cut overhead expenses, which resulted, in among other changes, the plaintiff...

Hopefully serving as a sign that courts will not regard the Americans With Disabilities Act Amendments Act of 2008 (ADAAA) as license to find every complaint or condition a “disability” under the ADAAA, the United States Court of Appeals for the Tenth Circuit recently held that a plaintiff who was diagnosed with migraine headaches was not “disabled” under the ADAAA.  The plaintiff experienced migraines and admitted that she could suffer...

The FMLA entitles eligible employees to take up to twelve weeks of unpaid leave for the birth or placement of a child or for a serious health condition of the employee or the employee’s spouse, child, or parent.  “Eligible employees” are those who have worked at least 1,250 hours in the past 12 twelve months and have been employed by the employer for a total of at least 12 months as of the date the FMLA leave is to start.  The FMLA also...

In a decision that many are calling a resounding victory for religious organizations, the Supreme Court has unanimously decided that the First Amendment’s establishment and free exercise clauses create a “ministerial exception” that bars an ADA lawsuit (and by extension all discrimination cases) brought against a religious organization by a former elementary school teacher who was a Lutheran “commissioned minister.  Hosanna-Tabor Evangelical...

Two members of the NLRB (and with one member recusing himself) held that an employer violated the National Labor Relations Act by requiring non-union employees to sign a mandatory arbitration agreement that waived employees’ rights to participate in class or collective actions.  D.R. Horton Inc., 357 N.L.R.B. No. 184, (January 3, 2012). NLRB Chairman Mark Pearce and Member Craig Becker found that D.R. Horton Inc.'s mandatory arbitration...

On January 4, 2012, President Obama announced that he would make three recess appointments to the National Labor Relations Board ("NLRB"). The three new appointees, who will be eligible to serve until December 2014, will bring the Board to its five member capacity. The new appointees are Sharon Block, who is presently Deputy Assistant Secretary of Labor for Congressional and Intergovernmental Affairs (and former labor counsel to the late Senator...