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SCOTUS Benchslaps NLRB & Its Uneven Playing Field

Section 10(j) of the National Labor Relations Act ("NLRA") equips the National Labor Relations Board ("NLRB" or “Board”) with a powerful tool to address supposed unfair labor practices during the pendency of a Board unfair...more

NLRB Revives 'Biggest Idiot' Standard, & Your Handbooks Are Toast (Again)

Section 7 of the National Labor Relations Act (NLRA) grants employees the right to unionize, engage in activities to advance their common interests, and abstain from these activities. From time to time, employers establish...more

SCOTUS Giveth & SCOTUS Taketh Away in Religious Accommodation Ruling

Title VII requires an employer to reasonably accommodate an employee's religious beliefs and practices unless doing so would cause an "undue hardship." SCOTUS delimited the boundaries of "undue hardship" in this context some...more

SCOTUS Pro-employer Pendulum Swings When It's the Fed's Ox Getting Gored

The False Claims Act ("FCA") imposes liability on anyone who "knowingly" makes a false claim to the Federal Government. This includes making false claims for reimbursement from the government under federal programs. As part...more

Appellate Court Revives Employee’s ADA Claim While Adopting a Nuanced, Partially Pro-Employer Interpretation of the ADA

Several courts have held that an employer violates the ADA simply by refusing to provide a reasonable accommodation regardless of whether the refusal adversely affects the employee. Put another way, these courts hold that the...more

Court's Bench-slap of NLRB Whipsaws Employers, Unions, Arbitration, & Even the First Amendment

The Eleventh Circuit Court of Appeals recently issued a decision that is highly critical of the NLRB, yet its end result promises significant mischief when it comes to employment litigation. International Brotherhood of...more

Sound and Fury, Signifying Something Really, Really Big: The FTC Quadruples Down on Non-competes

On Wednesday, the Federal Trade Commission (FTC) announced it had entered into consent decrees with three companies, requiring them to completely scrap their long-standing non-compete agreements with their employees. The FTC...more

New SCOTUS Case Augurs Toward More Prayer in Public Employment Settings

The U.S. Supreme Court issued a blockbuster school prayer decision Monday in Kennedy v. Bremerton School District. The case involved a public high school football coach who was fired for praying on the field after each game,...more

Public Sector “Paid Union Release Time” Survives Constitutional Scare

In the public and private sectors, employers regularly include “paid union release time” within their bargaining agreements. With this practice, an employer pays certain employees their regular wages to perform services...more

Ask Not For Whom The Bellwether Tolls – It Tolls For Amazon

Today Amazon won a major victory in a union organizing campaign involving one of its Alabama facilities. Pundits have talked up this campaign for months and months, many suggesting that it would serve as a bellwether for a...more

Fending Off Future Bench-Slaps, The EEOC Slaps Itself

Thursday the EEOC took the extraordinary step of limiting its own jurisdiction. Section 707 of Title VII empowers the EEOC to bring “pattern and practice” lawsuits to challenge an employer’s “resistance” to the rights...more

NLRB Cleans Up Employee Foul/Abusive Language With Sweeping New Opinion

This week the NLRB issued a blockbuster decision addressing employees’ abusive and foul language in the workplace. General Motors LLC, 369 NLRB No. 127 (2020). In the past, the Board has given many employees a free pass when...more

Ninth Circuit Benchslaps EEOC’s Perplexing ADA Position Shif

The Ninth Circuit Court of Appeals recently held that an employer may use after-acquired evidence to demonstrate that an employee is not qualified and therefore is not entitled to ADA protection. Anthony v. TRAX International...more

SCOTUS Raises Bar On Contract Discrimination Claims

Today the U.S. Supreme Court raised the bar on a wide-ranging Civil War Era statute that prohibits discrimination in the making and enforcement of contracts. Comcast Corp. v. National Association of African-American Owned...more

3/24/2020  /  Broadcasting , Comcast , Discrimination , SCOTUS

EEOC Benchslapped For Umpteenth Time On Criminal Background Checks

In a case with a truly byzantine court history, Texas v. EEOC, Texas has once again prevailed in striking down the EEOC’s “guidance” on employer use of arrest and conviction records. Way back in 2012, the EEOC issued...more

NLRB Says Organizer Access To Public Spaces Is Not On The Menu

Over thirty-five years ago, the NLRB held that an employer may not prohibit a union organizer’s access to an employer’s privately owned, but publicly accessible areas, such as an employer’s public restaurant or cafeteria,...more

EEOC Right To Sue Fiasco Ends In Whimper, Not A Bang

The EEOC settled a lawsuit challenging its issuance of some 54 “Right to Sue” notices involving BNSF Railway. Law 360 reports that the case settled when the EEOC agreed to set aside the Right to Sue notices. BNSF sued the...more

SCOTUS Limits Common Title VII Defense

The U.S. Supreme Court ruled today that a plaintiff’s failure to properly perfect an EEOC charge is a “prudential” defense to a Title VII claim, which may be waived by the employer’s failure to promptly raise the defense in...more

Bizarre Texas Tactic A Cautionary Tale For Employers

Plaintiffs’ attorneys in Texas have come up with a not-so-clever, but potentially effective way to circumvent mandatory arbitration agreements. In Adcock v. Five Star Rentals/Sales, Inc., (Fourth Court of Appeals, Texas,...more

SCOTUS Restricts Class Arbitrations

In yet another pro-arbitration, employer-friendly decision, the U.S. Supreme Court ruled this morning that an individual cannot pursue claims in arbitration on behalf of a class unless the arbitration clause involved clearly...more

NLRB Reins In Prior Expansive View Protected Concerted Activity

“So, two guys walk into a bathroom…” No, seriously, this case is about two co-workers who walked into a bathroom. While in the bathroom, Employee A complained to Employee B that a former client had been dropped back in his...more

Facebook-Hacking Employer Still Gets Injunction Against Ex-Employees

Scherer Design Group (“SDG”) sued several of its former employees for starting a competing business (while still employed), stealing trade secrets, and stealing clients. The trial court entered an injunction against the...more

Wide-Ranging Decision From The Grave Scrapped By SCOTUS

This morning the Supreme Court sent a blockbuster case back to the Ninth Circuit to be reconsidered because the judge who actually wrote the Ninth Circuit’s majority decision had passed away before it issued. The plaintiff...more

EEO-1 Reprieve

Good news from the EEOC for a change! The EEOC announced that it is delaying the deadline to submit EEO-1 data until May 31, 2019. The agency blames “a partial lapse in appropriations” for its need to extend the deadline,...more

SCOTUS Hits Brakes On I/C Trucker ARB

Yesterday the U.S. Supreme Court ruled against a large national trucking company in its attempt to enforce an arbitration agreement against one of its independent contractor truck-drivers. New Prime Inc. v. Oliveira, No....more

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