EEOC Naughty, But Employer Gets Lump of Coal

By John Alan Doran A federal court of appeals recently broke ranks with other federal appellate courts, holding that the EEOC’s failure to obey its statutory duty to conciliate before filing a lawsuit does not serve as a defense to the lawsuit. EEOC v Mach Mining, LLC, No. 3:11-cv-879 (S.D. Illinois December 20, 2013)  Title VII plainly […]

Another Win for FLSA Class Action Waiver

By Lori Phillips In Porreca v. Rose Group, No. 13-1674 (E.D. Penn. Dec. 11, 2013), an employee attempted to bring class claims for violations of the wage and hour provisions of the FLSA against its restaurant employer in federal court.  The restaurant moved to compel arbitration, and the employee fought it, arguing that the arbitration […]

Court Nixes Non-Appealability Clause in Arbitration Agreement

By Lori Phillips Generally speaking, arbitration is a matter of contract, and arbitration agreements must be enforced according to their terms. The Ninth Circuit recently issued a caveat, however. In In re Wal-Mart Wage & Hour Employment Practices Litigation, No. 11-17718 (9th Cir. Dec. 17, 2013), an issue of first impression, the Ninth Circuit held […]

Restaurant Managers in Hot Water

By Bryan Stillwagon Business owners are often sued personally in FLSA suits, but a recent case shows there’s a significant risk for restaurant managers, as well. In Jang et al. v. Woo Lae Oak, Inc., et al., No. 12-cv-00782, 2013 WL 6577027 (N.D. Ill. Dec. 12, 2013), former employees sued the restaurant and the general […]

Administrative Law Judge “Anti-intellectual?”

By Bill Wright 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 injuries (repetitive motion plus force) and the idiosyncratic opinion of an OSHA-endorsed expert that repetitive motion alone must cause […]

The Plaintiff’s Bankruptcy as a Bar to Later Lawsuits

By Lori Wright Keffer When does a plaintiff’s bankruptcy bar a later discrimination claim? The Ninth Circuit recently framed the issue with two cases: In Ah Quin v. County of Kauai Department of Transportation, No. 10-16000 (9th Cir. 2013), a plaintiff-debtor failed to list her pending employment lawsuit as an asset in her bankruptcy case. […]

A WARNing for Related Entities

By Bryan Stillwagon When are related entities part of one “employer” under the WARN Act? When they function as one employer. In Guippone v. BH S&B Holdings LLC et al., No. 12.183-cv, 2013 WL 6439354 (2nd Cir. Dec. 10, 2013), the 2nd Circuit Court had to decide whether an employer and the holding company that […]

NLRA vs Federal Arbitration Act: Arbitration Wins

By Lori Phillips In D.R. Horton, Inc., v. NLRB, No. 12-60031 (5th Cir. 2013), the Fifth Circuit overturned an NLRB decision that an employer infringed on employees’ rights by requiring them to sign an arbitration agreement in which they waived their right to maintain joint, class, or collective employment-related actions in any forum, judicial or […]

Wal-Mart Plaintiffs Seek to Change the Rules

By Andy Volin After the Supreme Court rejected a nationwide class action by female Wal-Mart workers in the 2011 Dukes case, the plaintiffs filed smaller class actions in different parts of the country. Wal-Mart has persuaded several of the trial courts that these “second chance” class actions were filed too late. The courts have relied […]