Texas Messes with EEOC

By John Alan Doran When Texans say “Don’t Mess With Texas”, they’re speaking directly to the EEOC these days. The State of Texas recently sued the EEOC, seeking to prevent the EEOC from enforcing its 2012 Enforcement Guidance on employer use of criminal background checks. State of Texas v. EEOC. The EEOC’s 2012 Enforcement Guidance […]

NLRB Asks For, Gets, the Casablanca Treatment

By John Alan Doran The NLRB received a nasty benchslap from the Eleventh Circuit Court of Appeals recently in a case challenging the NLRB’s interpretation of supervisor status under the NLRA. Lakeland Health Care Associates, LLC v. NLRB. The case arose when a nursing home and long-term care facility refused to bargain with a union […]

Power To The People (Mark), Redux

By John Alan Doran A federal appeals court recently upheld a $750,000 award to an employer for the attorneys’ fees and expert witness fees it expended defending a frivolous class action brought by the EEOC.  EEOC v. Peoplemark, Inc. The EEOC sued staffing agency Peoplemark, Inc. based on what the EEOC claimed to be a […]

Class Arbitration “No Mere Detail”

By Lori Phillips In a case likely to affect employer-employee arbitration agreements, one court has ruled that a court, and not an arbitrator, must determine whether ambiguous arbitration agreements cover class claims. Reed Elsevier, Inc. v. Crockett, No. 12-3574 (6th Cir. 2013). The case involves a LexisNexis customer disgruntled over a billing dispute. The issue […]

Cat’s Paw Revisited

By Bill Wright Stalking the string of “cat’s paw” cases after the Supreme Court’s 2011 decision in Staub v. Proctor Hosp., a former employee recently asserted that his manager’s bias against Hispanics caused the employer to terminate his employment – not because the manager made the decision to discharge the employee, but because the actual decision-maker relied […]

IBM Avoids Liability for “Inartful” HR IM

By Bill Wright HR professionals slip into jargon and euphemisms, like everyone else. Also, like everyone else, HR professionals think their instant messages are too ephemeral to become evidence in a discrimination suit. Not so. The courts recently had to address whether an exchange of instant messages between HR professionals about a reduction in force […]

Medical Marijuana Use Doesn’t “Manifest” A Disability

By Vance Knapp In Bailey v. Real Time Staffing Servs., Inc., No. 13-5221 (6th Cir. 2013), the employee tested positive for marijuana in a random test. He tried to explain – to the employer and to the medical review officer – that he had a “medical condition” and was “prescribed” a medication that might cause […]

Excuses Don’t Get Employee Out of Arbitration

By Lori Phillips An employer rolled out a dispute resolution program that included arbitration. The employer mailed brochures, held a mandatory video screening during work hours, and electronically posted details about the program. Employees had two opportunities to opt-out of the arbitration provision and were told that failure to opt-out would result in their inability […]

The Court Can Tell What’s “Necessary” For Your Health

By Karla Sanchez Relying on expert testimony, the court can tell whether showers are necessary for your workers’ health and safety. In DeKeyser v. Thyssenkrupp Waupaca, Inc., No. 12-3306 (7th Cir. Oct. 30, 2013), iron foundry employees brought suit against their employer. The workers argued they should be paid overtime for time spent showering and […]