Wal-Mart Wins Again in a Regional Class Action

By Andy Volin After the Supreme Court rejected a nation-wide class action in 2011, female workers have sued Wal-Mart in a number of smaller class actions around the country. Wal-Mart has successfully argued that several of these new cases are untimely. In a new decision, a federal court dismissed the regional action filed in Wisconsin […]

Appeals Court to Decide if EEOC is Above the Law

By John Alan Doran Title VII provides that, once the EEOC makes a “cause” finding against an employer, the EEOC must go through the process of “conciliation” with the employer prior to bringing suit. This provision in Title VII allows the EEOC and the employer an opportunity to resolve the matter prior to expensive and […]

Employers Beware: Agency May Reinstate Whistleblowers following Investigation

By Patrick Miller Under some statutes, the Occupational Safety and Health Administration (“OSHA”) may order the reinstatement of former employees as part of its conclusions after a whistleblower investigation, even while the employer’s administrative appeal is pending. OSHA is responsible for investigating claims of retaliation under numerous federal statutes, including the Occupational Safety and Health […]

$3.5M in Punitive Damages Vacated

An employer avoided $3.5M in punitive damages by proving it took sufficient steps to stop and prevent harassment. Otto May Jr. v. Chrysler Group, LLC, Nos. 11-3000 & 11-3109 (7th Cir. May 14, 2013). In this case, the plaintiff was subjected to dozens of threats and derogatory graffiti messages, from 2002 until 2005, based on […]

Third Circuit Deals NLRB Another Blow

By Mike Grubbs Another federal circuit court has struck down one of President Obama’s recess appointments to the National Labor Relations Board. In N.L.R.B. v. New Vista Nursing and Rehabilitation, the Third Circuit Court of Appeals held that the recess appointment of Craig Becker in March 2010 was invalid because the Senate was not actually […]

Employee’s Hostile Conduct Was Objective Basis For Personality Test

By Ted Olsen An employer lawfully required an employee to undergo a psychiatric/psychological fitness-for-duty examination because of his obstreperous conduct with management and Human Resources personnel and because an independent psychologist recommended such an examination due to safety concerns. The facts satisfied the Americans with Disabilities Act’s dual requirements that medical testing of an employee […]

Customer List Not Secret Enough

By Rose McCaffrey An employer was unable to protect the confidentiality of its customer list, because it failed to present any evidence that the list was worthy of trade secret protection. Calisi v. United Financial Services, Inc., No. CV 2010-000795 (Ariz. App. April 11, 2013). A customer list may qualify as a trade secret when […]

Member Becker, Tear Down That Poster!

By John Alan Doran The NLRB exceeded its authority when it adopted its August 2011 rule requiring employers to post a new Notice informing employees of their rights under the National Labor Relations Act. In August 2011, the NLRB finalized a rule that required all employers to post a Notice to all employees specifically describing […]

When a Manager Fails to Follow the RIF Policy

By Sarah Peace An employer recently lost a trial on an age discrimination claim arising from a reduction in Force (“RIF”). The employer lost because the manager involved unilaterally failed to follow the company’s policies: First, the employer’s policy gave managers discretion to group and force rank employees, but here the manager attempted to fix […]

Court “Baffled” By NLRB’s “Interpretive Leap”

By Mike Grubbs The NLRB took an unjustified “interpretive leap” when it found that a hospital president’s statement about union negotiations conveyed a threat and violated federal labor law. Flagstaff Med. Ctr. Inc. v. NLRB, D.C. Cir., No. 11-1326 (April 26, 2013). In this case, the hospital president told employees that if they voted to […]