WHISTLE BLOWERS ON THE VERGE OF TERMINATION BEAR A HEAVY BURDEN

Peter Saucier
Peter Saucier
09/01/2023
A Radiation Therapist in the Oncology treatment operation at Mercy Hospital violated rules requiring that she obtain signed patient waivers at the same time that her overall performance was unsatisfactory.  Supervising physicians and co-workers cataloged a number of the Therapist’s short-fallings.  A key supervising physician described to investigators at Mercy incidents of “poor job performance and altercations with co-workers.”  Romeka v....
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Discrimination Accusations by DOJ Rocket SpaceX to Spotlight…Yet again

SpaceX, Elon Musk’s venture that designs, manufactures, and launches rockets and spacecraft, faces a lawsuit filed by the Department of Justice alleging discriminatory hiring practices against refugees and asylees.  The complaint alleges SpaceX, under the guise of export laws and regulations including the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR), used discriminatory hiring practices in...
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And So The Pendulum Swings: NLRB Revives Joy Silk From The Ashes

Mathew Moldawer
Mathew Moldawer
08/29/2023
The NLRB’s democratic majority struck a big win for unions by reviving the precedent set in the 1949 NLRB decision, In re Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949).   Using Cemex Construction Materials Pacific, LLC as their torpedo, the NLRB has inflicted a blow to employers facing unionization efforts. The employees at issue were approximately 366 ready-mix cement truck drivers and driver trainers.  The drivers and trainers showed support...
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Fifth Circuit: Discrimination More Than “Ultimate Employment Decisions”

Darrell VanDeusen
Darrell VanDeusen
08/28/2023
Since July 2, 1965, Title VII has made it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).   Nowhere does the law require that the discrimination be an...
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OSHA Provides Guidance on Reporting Injuries from Violent Acts at the Workplace

Mathew Moldawer
Mathew Moldawer
08/20/2023
The Occupational Safety and Health Administration (OSHA) released an interpretation letter that addresses when employers are required by OSHA rules to list injuries, illnesses, and deaths caused by violent acts at work on their OSHA logs.  Under OSHA standards, employers are required to keep a record of serious work-related injuries and illnesses.  29 C.F.R. 1904.5(a) provides that an injury or illness must be considered work-related if any event...
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‘Captive Audience’ Memo from NLRB General Counsel Survives First Legal Battle

Mathew Moldawer
Mathew Moldawer
08/17/2023
Since the decision in Babcock v. Wilcox Co., 77 NLRB 577 (1948), the NLRB has permitted captive audience meetings. Under the captive audience doctrine and Section 8(c) of the NLRA, employers may hold mandatory employee meetings and speak to their employees about unionization so long as the employer does not threaten, punish, or promise benefits to the employees. Captive audience meetings are one of the few remaining arrows in management’s quiver...
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EEOC Has Released Proposed Regulations Regarding the Pregnant Workers Fairness Act

Kollman & Saucier
Kollman & Saucier
08/10/2023
In its latest effort to never make a decision too soon, this week, on August 7, 2023, the Equal Employment Opportunity Commission (EEOC) released proposed rules/regulations on how to implement the Pregnant Workers Fairness Act (PWFA).  The PWFA was passed by Congress in March 2023 and became effective on June 27, 2023, 180 days after President Biden signed the Act.  The PWFA creates new requirements for employers of 15 or more employees (the same...
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New FMLA Treatise Available

Kollman & Saucier
Kollman & Saucier
08/07/2023
Darrell VanDeusen’s treatise on the Family and Medical Leave Act is now available through LexisNexis as a standalone reference book.  It is available both in hard copy and as an eBook.  This link will take you to the Lexis store.    Darrell’s work on the FMLA and Wage and Hour Law will continue to be available as a part of LEXIS’s Labor and Employment Law multi-volume series as well, and of course on the LEXIS research...
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NLRB Revises Workplace Rules Standards

As has been anticipated for some time, the National Labor Relations Board (NLRB), in Stericycle, Inc. (Aug. 2, 2023), adopted a new standard for determining whether workplace rules are lawful under the National Labor Relations Act.  The new standard is similar to the analysis used prior to the Board’s 2017 decision in Boeing Co. Under the Stericycle framework, the lawfulness of workplace rules under the NLRA turns on whether workers would view...
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Former McDonald’s Employee’s Harassment Claim Fails

To prevail on a hostile work environment claim under Title VII of the Civil Rights Act of 1964, a plaintiff must typically show that there is unwelcome conduct that is based on the plaintiff’s protected characteristic, which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment, and that the employment action is imputable to the employer.  When considering whether there is a hostile work environment, courts look...
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