Bill Wright

Bill Wright

Sherman & Howard L.L.C.

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What’s the Alternative?

FEMA Employees sued when FEMA closed its Puerto Rico-based call center. The call center was originally a “temporary” center set up to address calls from Spanish-speaking victims of a hurricane. The leased facility was...more

8/4/2015 - Call Centers Disparate Impact FEMA Health and Safety Layoffs Puerto Rico Title VII Workplace Safety

Court Order Trumps Board

What happens when the NLRB says an arbitration agreement is illegal, but a court enforces the agreement anyway? Four plaintiffs recently found out. In Hobson et al. v. Murphy Oil USA, Inc., No. CV-10-S-1486-S (N. D. Ala. July...more

7/13/2015 - Appeals Arbitration Agreements Collective Actions Motion To Reconsider NLRB Protected Concerted Activity Unfair Labor Practices Unpaid Overtime Willful Misconduct

Medical Marijuana Still “Unlawful”

The Colorado Supreme Court considered whether a state law prohibiting discrimination based on an employee’s “lawful” off-work activities applies to the employee’s use of medical marijuana as permitted under state law. Coats...more

6/26/2015 - CO Supreme Court Coats v Dish Network Drug Testing Employment Policies Hiring & Firing Marijuana Medical Marijuana Off-Duty Employees Zero Tolerance Policies

A Court Abandons Horton

In February 2013, we reported on a federal court in Idaho that followed the NLRB’s D.R. Horton decision and ruled that agreements to arbitrate all claims solely on an individual basis were unenforceable. Here’s the rest of...more

4/1/2015 - Arbitration Class Action Class Action Arbitration Waivers D.R. Horton v NLRB Employer Liability Issues Employment Contract NLRB

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

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