Bill Wright

Bill Wright

Sherman & Howard L.L.C.

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The Merry-Go-Round Continues

The Supreme Court says federal agencies may reverse their legal interpretations, without giving notice to the public of a proposed change and considering comments on the proposal. Perez v. Mortgage Bankers Association, No....more

3/11/2015 - Administrative Procedure Act DOL Exempt-Employees Notice and Comment Perez v Mortage Bankers Assoc Rulemaking Process SCOTUS

The Dangers of Consent

Once an employer agrees to a Consent Decree with the EEOC (and a court enters the decree), that EEOC dispute is over, right? Oh no. The Consent Decree gives the EEOC a new enforcement tool; with any new act of...more

3/11/2015 - Consent Decrees Contempt EEOC Enforcement Enforcement Actions

No Names Please

When you file SEC reports, do you report litigation risks? Do you name employees involved? An employer is headed to trial over whether it retaliated against a former employee by stating her name in SEC filings as the...more

1/14/2015 - EEOC Employer Liability Issues Reporting Requirements Right to Privacy SEC

NLRB to Re-Hear Labor Arbs

Another NLRB bombshell. The NLRB used to “defer” statutory issues to arbitration. For example, if an employer and union arbitrated the issue of an employee’s discharge for good cause, the NLRB would not then prosecute an...more

12/18/2014 - Arbitration Arbitrators NLRB Protected Concerted Activity Termination Unfair Labor Practices Unions

That Shouldn’t Be My Job

The plaintiff argued he was fired over a host of production issues, but none were his fault. Every single issue was someone else’s fault. So, he argued, he must have been fired because of his age. ...more

11/22/2014

Which Petard?

Title VII says a union may not refuse to refer a person for work on discriminatory grounds. In a recent case, the plaintiff alleged that, because of her sex, her union never referred her to a job driving for movie production...more

11/19/2014 - Discrimination Employer Liability Issues Film Industry Gender Discrimination Title VII Unions

A PIP of a Discharge Claim

If you put an employee on a performance improvement plan (“PIP”), can he resign, sue on some theory or other, and collect damages as though he had been discharged? Two employees in Texas tried it. The employees contended that...more

10/27/2014 - Adverse Employment Action Constructive Discharge Discrimination Employee Evaluations Employer Liability Issues Hiring & Firing Performance Improvement Plans Performance Reviews

Is THC “Lawful” in Colorado?

The Colorado Supreme Court heard oral argument this morning in Coats v. Dish Network, LLC, 13SC394. The central issue in the case is whether the Colorado Lawful Activities Statute includes federal law. The Lawful Activities...more

10/1/2014 - Discrimination Dish Network Drug Testing Marijuana Medical Marijuana Oral Argument

Thumbs Up/ Thumbs Down, Still FCRA

Does your business use a contractor to provide in-home services to your customers? If so, you probably want the contractor to conduct background checks on its employees. You want the contractor to screen out people who pose...more

9/30/2014 - Background Checks Contractors Credit Reports Criminal Background Checks Employer Liability Issues FCRA Hiring & Firing Job Applicants Subcontractors

2 Plaintiffs, 24 years to Appeal

Is this a record? The 11th Circuit Court of Appeals recently ruled on a case involving 2 plaintiffs and 6 claims. The most remarkable fact is that the case at issue started in June 1990. That’s when the Complaint was filed;...more

9/18/2014 - Appeals Collective Actions EEOC Employer Liability Issues

Employer Rights Lost in Translation

A new NLRB matter demonstrates the importance of having bilingual managers for a bilingual staff. The employer addressed union members in the run up to a decertification election. The script called for the COO to warn the...more

9/11/2014 - NLRA NLRB Strike Unions

Re-Claiming Credit

When an employee leaves and sets up a competing business, may he or she claim experience for work done by the former employer? The Seventh Circuit recently considered whether an architect – a former employee of a firm – is...more

8/26/2014 - Architects Competition Employer Liability Issues Lanham Act

Texas’ Mess Premature

Back in November, we alerted you to Texas’ lawsuit against the EEOC over the EEOC’s Enforcement Guidance prohibiting categorical employer policies that preclude hiring convicted felons. Texas v. EEOC, No. 5:13-CV-255-C (N.D....more

8/25/2014 - Criminal Background Checks Discrimination EEOC Employer Liability Issues Employment Policies Enforcement Guidance Job Applicants

The Boss Just Wanted to Help

Assuming that psychological counseling might be a “medical examination” under the ADA, when may an employer require an employee to get counseling as a condition of continued employment? A recent 6th Circuit case provides some...more

8/21/2014 - ADA Employer Liability Issues Hiring & Firing Psychological Counseling

False Filing Still Protected

A policy against making bad faith complaints of discrimination or harassment is no protection for an employer. Recently, an employee – jointly employed by the Army and a private employer – filed a complaint of age...more

8/15/2014 - Bad Faith Discrimination False Statements Harassment

You’re on Leave — Return Receipt Requested

An employee over-extends her FMLA leave and the employer declines to reinstate her. The employee exclaims that she never knew she was on FMLA – short term disability, sure, but not FMLA. ...more

8/7/2014 - Email Employer Liability Issues FMLA Signatures

News Flash: ESOP Fiduciaries May Obey the Law

The U.S. Supreme Court ruled in Fifth Third Bancorp et al. v. Dudenhoeffer, No. 12-751 (U.S. June 25, 2014), that no special presumption of prudence applies to the decision by ESOP fiduciaries to buy and hold stock of the...more

6/27/2014 - Compliance ESOP Fiduciary Duty FIfth Third Bancorp v Dudenhoeffer SCOTUS SEC U.S. Bancorp

HR as Caesar’s Wife

An employee rejects a co-worker’s proposal of a physical relationship. The co-worker gets him fired. Is the employer liable for sex discrimination? This is different from earlier cat’s paw cases because the person who caused...more

5/29/2014 - Employer Liability Issues Harassment Human Resources Professionals Negligence

History + Pretext = Trial

A history of workplace racial imbalance might undermine your legitimate non-discriminatory reason for a promotion decision. In Ahmed v. Johnson, No. 13-1054 (1st Cir. May 21, 2014), the plaintiff argued he was passed over for...more

5/29/2014 - Discrimination Employer Liability Issues Job Promotions Racial Discrimination

ADEA Safe Harbor Unsafe

In 1945, an employer and unions created a pension plan that provided equal pensions to all workers retiring at age 65 but capped the employer’s contributions. The result was that workers who joined the plan later in life,...more

4/2/2014 - ADEA Age Discrimination Employer Liability Issues Safe Harbors

SOX Un-Boxed

Prepare for DOL whistleblower litigation. The Supreme Court has ruled on the scope of the Sarbanes-Oxley Act whistleblower provision. According to SCOTUS, SOX allows any employee to bring a whistleblower complaint, so long...more

3/7/2014 - DOL FMR LLC Lawson v FMR Sarbanes-Oxley SCOTUS Whistleblower Protection Policies Whistleblowers

Location Doesn’t Matter

The Chicago-based 7th Circuit Court of Appeals ruled that where an employee provides care for a family member with a serious health condition does not matter under the Family and Medical Leave Act (“FMLA”)....more

2/4/2014 - Caregivers Family Members FMLA

Broken Bones

Cases under the ADA Amendment Act are finally reaching the courts of appeals. In what might be the first case to reach the appellate level on an issue other than whether the statute applied retroactively, the 4th Circuit has...more

1/28/2014 - ADA ADAAA Bodily Injury Disability EEOC Employee Rights

RLA: A Duty to Unionize?

Aircraft service employees threatened to close Seattle’s airport. They were disgruntled about the suspension of a co-worker, and they banded together with a community organizer (not a union agent) to threaten a strike. The...more

1/17/2014 - Railway Labor Act Railways Unions

Administrative Law Judge “Anti-intellectual?”

Clearly annoyed, the 7th Circuit Court attacked an ALJ’s ruling on expert evidence as “circular,” “unscientific” and “anti-intellectual.” At issue was a conflict between the prevailing medical view on the cause of elbow...more

12/19/2013 - Appeals Expert Testimony Judges OSHA

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