DESPITE UNCONSTITUTIONAL APPOINTMENTS, NLRB AUTHORITY CONSIDERED RETROACTIVELY VALID BY THE THIRD CIRCUIT

The Third Circuit Court of Appeals recently held that actions taken by the National Labor Relations Board (“NLRB”), including its Regional Directors, during a time when it did not maintain a constitutionally valid quorum are nevertheless binding and have full legal force.  In Advanced Disposal Servs. E., Inc. v. NLRB, the NLRB found that an employer violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (“NLRA”) when it refused to collectively bargain with a newly-certified bargaining unit.  The NLRB issued an order to enforce the election, and the employer appealed.  Read More »

SCOTUS EXPANDS FREE SPEECH PROTECTION FOR PUBLIC-SECTOR EMPLOYEES

The Supreme Court of the United States has historically taken a very narrow view of the free speech protections afforded to public-sector employees under the First Amendment to the Constitution.  It has generally held that public-sector employee speech or political activity is protected only if (1) they spoke as a citizen, rather than within the auspices of their official duties; (2) they spoke on a matter of public concern; and, (3) their right to speak on that matter outweighed the government’s interest in curbing their speech to provide effective government service to citizens.  Public-sector employees have, more often than not, lost under this framework, most pointedly where there is any kind of concern that the wrong precedent will allow public-sector employees to gum up the public workplace with disruptive speech.  (Note that private-sector employees, who do not enjoy the protections of the Constitution absent governmental action, have even less free speech protection than public-sector employees.) Read More »

EMPLOYEE, INDEPENDENT CONTRACTOR OR HYBRID?

On April 19, 2016, the District of Columbia Circuit, held that Orchestra musicians were employees, not independent contractors.  Lancaster Symphony Orchestra v NLRB.  The National Labor Relations Act (“NLRA”) guarantees employees, but not independent contractors, the right to join a union.  In making the determination as to whether a person is an employee or an independent contractor, the National Labor Relations Board (“Board”) considers ten factors: Read More »

CIRCUIT COURT FAILS TO BROADEN ADA PROTECTION TO OBESE APPLICANT

The Americans with Disabilities Act Amendments Act (“ADAAA”) sought to broaden the scope of protection for disabled individuals which had been available under the Americans with Disabilities Act (“ADA”) by expanding the definition of “disability.”  “Disability” is defined under both the ADA and ADAAA as “(i) a physical or mental impairment that substantially limits one or more of a person’s major life’s activities; (ii) a record of such impairment; or (iii) a condition regarded as an impairment.”  Subsequent to the passage of the ADAAA, the Equal Employment Opportunity Commission (“EEOC”) issued regulations to provide guidance under the Act.  According to these regulations, the “definition of the term ‘impairment’ does not include physical characteristics such as …weight… that are within the ‘normal range’ and are not the result of a physical disorder.” Read More »

I MAY BE OLD, BUT I’M STILL “SUBSTANTIALLY YOUNGER” THAN YOU

The West Virginia Supreme Court of Appeals recently reversed itself and adopted the “substantially younger” rule in cases of age discrimination under the West Virginia Human Rights Act (“WVHRA”).  Previously, in order to prove age discrimination, an employee in the protected class—40 years old or older—had to show that he or she was replaced by or treated differently than a similarly-situated employee outside of the protected class—under 40 years old.  This was the “over 40/under 40” rule.  Now, an employee may prove age discrimination by showing evidence of a comparator employee who is substantially younger than the plaintiff, even if that comparator employee is also over 40 years old. Read More »

OSHA UPDATE

I had the opportunity to hear Dr. David Michaels, Ph.D., the Assistant Secretary of Labor for OSHA, speak on March 10, 2016, about the state of Occupational Safety & Health in the United States.  It was not just a “normal” speech, as it was his last in that position before the American Bar Association Labor & Employment Law Section Committee on Occupational Safety & Health.  In attendance were lawyers devoted to representing employers like me, lawyers from unions, lawyers from the Solicitor’s Offices around the Country who represent OSHA, OSHA officials from Washington, D.C., Commissioners from the independent Occupational Safety & Health Review Commission (OSHRC), and the Chief Judge of OSHRC, and various Company and Industry representatives, including the U.S. Chamber of Commerce, and various employee rights groups.  Our assemblage is unique in that it contains all constituencies in the OSHA world.  Read More »

ADA: ARE YOU PARTICIPATING IN THE INTERACTIVE PROCESS IN “GOOD FAITH”?

The Americans with Disabilities Act (“ADA”) provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . .” 42 U.S.C. § 12112(b)(5)(A). Read More »

UBERIZATION OF SAFETY: IS IT REALLY THAT BAD???

This blog post is the final part of a six part series on the impact the Uber business model is having on employment laws across the nation.

District Attorneys for Los Angeles and San Francisco recently amended their complaint in another existing lawsuit against Uber – this one about consumer protection.  You’ve probably seen the headlines, screaming about drivers with histories of murder, assault, child abuse, and countless other criminal horrors.  One issue in the suit concerns the background checks conducted by Uber and other representations regarding safety it has made on its website.  One of the District Attorneys contends that Uber has misled consumers by performing background checks that do not go far enough.  The initial lawsuit was filed in December, 2014, and since that time, Uber has scaled back the statements on its website and has continued to make improvements geared toward safety for both its riders and its drivers.  Is Uber really as unsafe as the headlines and district attorneys would have you believe?  In my View, the answer is a resounding “No.”   Read More »

FOURTH CIRCUIT OK’S THE FBI’S GENDER-BASED PHYSICAL FITNESS STANDARDS UNDER TITLE VII

Since 2004, the Federal Bureau of Investigation (“FBI”) has required its special agent recruits to pass a physical fitness test (“PFT”), both before admission to and graduation from its academy in Quantico, Virginia.  The PFT consists of four-parts: (1) one-minute of sit-ups, (2) a 300-meter sprint, (3) push-ups to exhaustion, and (4) a 1.5-mile run.  Each part is subject to a gender-based standard.  Under the push-up portion of the PFT, for example, men must do thirty push-ups to pass, while women need only do fourteen.rlee

Read More »