High court agrees to hear NLRB recess appointments case

June 24, 2013 - by: HR Hero 0 COMMENTS

The U.S. Supreme Court has agreed to hear an appeal in Noel Canning v. NLRB.

In the Noel Canning case, the U.S. Court of Appeals for the District of Columbia Circuit ruled that three of President Barack Obama’s so-called recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. Without the three appointees, the Board lacked a necessary quorum to act. Thus, the D.C. Circuit’s ruling raised questions about the validity of hundreds of NLRB actions, including union-friendly decisions on social media, confidentiality rules, and off-duty employees’ access to workplaces.

The U.S. Constitution provides that the Senate must consent to the president’s nominees to federal agencies. The Constitution gives the president the authority to fill vacancies that “may happen” during the Senate’s recess that “shall expire at the end of the next session.”

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Ruling supports firing pot smokers despite Colorado law

April 29, 2013 - by: Tammy Binford 0 COMMENTS

The Colorado Court of Appeals has upheld an employee’s firing for off-duty marijuana use, despite medical and recreational use of the drug being allowed under state law.

A quadriplegic employee who used marijuana under the state’s medical marijuana amendment filed a lawsuit after he tested positive for drugs in violation of company policy and was fired. He claimed his employer violated the Colorado’s lawful off-duty activity statute, which prohibits termination for any “lawful activity” conducted off an employer’s premises during nonworking hours.

In its April 25th ruling, the appeals court held that the employee’s use of marijuana wasn’t lawful activity because “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.” Since marijuana use is illegal under federal law, the employer didn’t violate the law in terminating the employee.

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Court ruling puts NLRB future in jeopardy

January 25, 2013 - by: Tammy Binford 0 COMMENTS

A court ruling has put the brakes on the National Labor Relations Board (NLRB) and possibly invalidated decisions the Board has made for the last year.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled on January 25 that President Barack Obama acted unconstitutionally when he made three recess appointments to the NLRB on January 4, 2012.

The court’s ruling is seen as good news for employers because it seems to thwart what many in the business community see as the NLRB trying to rewrite labor law to benefit unions.

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Supreme Court ruling bolsters use of mandatory arbitration

by Charles S. Plumb

Employers requiring employees to submit disputes to mandatory arbitration rather than filing a lawsuit got a boost from a November 26 U.S. Supreme Court ruling in an Oklahoma case.

In the case, two employees of Nitro-Lift, a provider of services to oil and gas well operators, left their jobs to work for a competitor. The two had signed confidentiality and noncompetition agreements that included a clause requiring the parties to submit disputes to mandatory arbitration.

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U.S. Supreme Court rules drug reps are exempt as “outside salesmen”

By Nancy Williams

Pharmaceutical representatives who persuade physicians to prescribe specific drugs don’t make any actual sales. They can’t because the products they promote can be sold legally only through a doctor’s prescription to an individual patient. Yet for years, it has been a common industry practice to categorize such employees as outside sales representatives under the Fair Labor Standards Act (FLSA) and thus exempt from federal overtime pay requirements.

A lawsuit by pharmaceutical reps challenged the practice, raising the specter of huge potential overtime pay liability for the industry. Today that concern evaporated with the U.S. Supreme Court’s 5-4 ruling that the historical classification of pharmaceutical representatives as outside sales reps is correct under the FLSA.

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Supreme Court Sets High Bar for Class Certification

June 20, 2011 - by: HR Hero Alerts 1 COMMENTS

U.S. Supreme Court Buildingby Brad Williams, Holland & Hart LLP

The U.S. Supreme Court’s Dukes v. Wal-Mart decision is enormously consequential for employers, particularly those facing “bet-the-company” class actions involving allegations of widespread discrimination. In essence, the Court answered a number of outstanding procedural and interpretive questions involving the federal class-action device in such a way as to make obtaining class certification — or even ultimately recovering at trial — much more difficult for employment discrimination plaintiffs.

Sweeping Rules

Rather than resolve the case on narrow, technical grounds relating to the types of relief available under a Federal Rule of Civil Procedure 23(b)(2) class action or the validity of the Wal-Mart plaintiffs’ specific theory of sex discrimination, the Court laid down sweeping rules that will affect all employment discrimination class actions in the future. For example, class plaintiffs must now unambiguously “prove” all the elements required for class certification under Rule 23 and must show that class certification will help generate common answers — not just common questions — relating to potential discrimination.

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Supreme Court Provides Win for Employers in Wal-Mart Discrimination Lawsuit

June 20, 2011 - by: Jessica Webb-Ayer 2 COMMENTS

U.S. Supreme Court BuildingToday, the U.S. Supreme Court ruled in favor of Wal-Mart, the nation’s largest private employer, in a massive lawsuit that has been called the largest employment class action in U.S. history. The class of plaintiffs in Wal-Mart Stores v. Dukes included approximately 1.5 million former and current female Wal-Mart employees seeking injunctive, declaratory, and monetary relief that could have amounted to billions of dollars in back pay.

Although the case involved alleged sex discrimination, the Court wasn’t asked to decide whether the alleged discrimination occurred. Rather, the Court’s decision was limited to whether the suit could be handled as one massive class-action case. In what could be called a unanimous division, the justices all held that the case shouldn’t proceed as a class action; however, they were divided in their reasoning why.

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Supreme Court Hears Oral Arguments in Wal-Mart Discrimination Lawsuit

March 30, 2011 - by: HR Hero Alerts 0 COMMENTS

The U.S. Supreme Court heard oral arguments yesterday in Wal-Mart Stores v. Dukes, a massive lawsuit that has been called the largest employment class action in U.S. history. The class of plaintiffs in this case is estimated to include approximately 1.5 million former and current female Wal-Mart employees seeking monetary relief that could amount to billions of dollars in back pay. Although the case involves alleged sex discrimination, the Court won’t be deciding whether the alleged discrimination occurred but instead will have to determine whether class-action treatment is appropriate.

Wal-Mart’s attorney presented the company’s case first and argued that since the employees’ claims hinge on the company’s delegation of discretion to individual managers throughout the country, the employees can’t meet the cohesion requirements necessary for class-action treatment.

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Supreme Court Rules Oral FLSA Complaints Are OK

March 22, 2011 - by: HR Hero 0 COMMENTS

Today, in a 6-2 decision, the U.S. Supreme Court held that the Fair Labor Standards Act’s (FLSA) antiretaliation provision protects not just written complaints but also oral ones. The Court noted in its opinion that it heard the case because of a conflict in the circuit courts over whether oral complaints were protected.

In Kasten v. Saint-Gobain Performance Plastics Corp., Kevin Kasten sued under the FLSA, asserting that he was fired in retaliation for verbally complaining about his employer’s time-clock placement. The FLSA prohibits employers from retaliating against employees who have “filed any complaint” under the statute. The Seventh U.S. Circuit Court of Appeals ruled for the employer, holding that FLSA complaints must be made in writing because of the “filed” language (i.e., an oral complaint cannot be “filed”).

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Supreme Court Issues Employee-Friendly Decision in USERRA Case

March 01, 2011 - by: HR Hero 0 COMMENTS

Today, in Staub v. Proctor Hospital, the U.S. Supreme Court unanimously held that an employer may be liable under the Uniformed Services Employment and Reemployment Rights Act (USERRA) when the discriminatory actions of an employee who doesn’t make employment decisions influence the employment decisionmaker. More specifically, the Court noted, “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

In Staub, Vincent Staub, a member of the military reserves, sued his employer after his employment was terminated, alleging he was a victim of antimilitary discrimination in violation of USERRA. Staub based his claim on his supervisors’ alleged antimilitary bias, asserting they influenced the manager who fired him, even though the manager claimed he didn’t take such bias into account. In making his claim, Staub used the theory of cat’s-paw liability, which basically means one person has manipulated another. In an employment law context and specifically in this case, Staub used cat’s-paw liability to claim the employer was liable because his biased supervisors convinced the decision-making manager to take the adverse employment action (discharge) even though the decisionmaker may not have had any bias.

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