Monthly Archives: May 2016

GREEN v. BRENNAN: EMPLOYEE’S RESIGNATION STARTS THE STATUTE OF LIMITATION FOR CONSTRUCTIVE DISCHARGE CLAIMS

This past Monday, the U.S. Supreme Court ruled 7-1 in Green v. Brennan that the limitations period for filing a constructive discharge claim under Title VII begins to run on the date the employee gives notice of his intent to resign, not when the underlying discriminatory action occurred. Read More »

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 »