Labor & Employment Law

NLRB "recess" appointments were unconstitutional; Board lacked a quorum

Posted on January 25, 2013
Noel Canning v. NLRB (DC Cir 01/25/2013) The DC Circuit this morning held that the President's attempt to make "recess" appointments of three NLRB Members was invalid under the constitution. On February 8, 2012 the Board issued its decision finding that the employer violated the NLRA by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760...

NLRB's recent significant decisions

Posted on December 21, 2012
The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr...

Affirmative action ban in state constitution violates US constitution (8-7)

Posted on November 16, 2012
Michigan voters adopted a state constitutional amendment that prohibits "all sex- and race-based preferences in public education, public employment, and public contracting." The 6th Circuit (8-7) held this provision - as it relates to education - violates the 14th amendment's equal protection clause...

EEOC can use Teamsters-style pattern-or-practice theory under Title VII § 706

Posted on November 10, 2012
Serrano sued in a class action claiming sex discrimination and the EEOC intervened. The trial court ruled for the employer on a number of issues; the 6th Circuit reversed. Serrano and EEOC v. Cintas Corp (6th Cir 11/09/2012). The main issue was whether EEOC could pursue a pattern-or-practice style claim pursuant to § 706 of Title VII...

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NLRB: Firing for Facebook posting was legal

Posted on October 01, 2012
Let the NLRB's press release tell the story: The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected...

Supreme Court Watch: Employment law cases

Posted on October 01, 2012
We will be watching three pending cases at the US Supreme Court as the Court's session opens today: Kloeckner v. Solis Oral argument on October 2. The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals...

Wisconsin public employee collective bargaining statute amendments declared unconstitutional

Posted on September 15, 2012
A teachers' union sought declarative and injunctive relief against the governor, claiming that statutory amendments dealing with municipal employees' collective bargaining rights and payroll deductions of dues and pension contributions were unconstitutional...

Washington's sexual orientation discrimination amendment is not retroactive

Posted on September 13, 2012
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive. The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment...

Obesity can be a disability, at least in Montana

Posted on July 09, 2012
Obesity can be a disability, at least in Montana. Full decision: BNSF Railway v. Feit (Montana 07/06/2012) Feit got a ruling from the Montana Department of Labor that BNSF Railway discriminated against him by refusing to hire him because BNSF regarded him as being disabled due to his obesity...

Summary of Knox v. SEIU

Posted on June 24, 2012
My summary of Knox v. SEIU at SCOTUSblog.com: Knox knocks unions on mid-year assessment for non-members.

Mid-year union dues increase: Hudson notice required, opt-in not opt-out

Posted on June 21, 2012
The US Supreme Court this morning held that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent." Knox v...

EEOC briefs on line

Posted on June 20, 2012
This is pretty cool. EEOC briefs are now on line. [Here] They cover briefs filed in the US Circuit Courts of Appeals in which the EEOC was a party, plus amicus briefs filed in the US Circuit Courts of Appeals, District Courts, and state courts...

Pharma sales reps are FLSA exempt as outside salesmen (5-4)

Posted on June 18, 2012
This morning the US Supreme Court decided - on a 5-4 vote - that pharmaceutical sales representatives are "outside salesmen" and therefore exempt from overtime under the Fair Labor Standards Act. The Court also unanimously held that the Department of Labor's recently-announced contrary interpretation was entitled to exactly zero deference...

No district court jurisdiction for federal employee challenging adverse employment action (6-3)

Posted on June 11, 2012
The US Supreme Court held this morning that the Civil Service Reform Act (CSRA) precludes district court jurisdiction over Elgin's claim that his removal from federal service was based on an unconstitutional statute. The procedural route prescribed by the CSRA is by appeal to the Merit Systems Protection Board (MSPB) and, if dissatisfied with the result, appeal to the Federal Circuit, whose decisions in turn are reviewable by the Supreme Court...

DOMA down, but why?

Posted on May 31, 2012
The 1st Circuit today held that the Defense of Marriage Act's denial of federal benefits to married same-sex couples is unconstitutional. Massachusetts v. US Department of Health and Human Services (1st Cir 05/31/2012). The federal Defense of Marriage Act (DOMA) Section 3 prevents same-sex married couples from filing joint tax returns, prevent a surviving spouse from collecting Social Security survivor benefits, and prevents federal employees from sharing medical benefits with same-sex spouses...

NLRB Member Terence Flynn resigns

Posted on May 27, 2012
NLRB Member Terence F. Flynn submitted his resignation to the President and to NLRB Chairman Mark Gaston Pearce on May 26. [Press release] His resignation is effective July 24, 2012. He has immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB...

NLRB invites briefs on whether faculty members are employees.

Posted on May 22, 2012
The National Labor Relations Board is inviting briefs from interested parties on the question of whether university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managers. [Official Notice] The case is Point Park University (06-RC-012276)...

NLRB election rule is enjoined for lack of quorum

Posted on May 14, 2012
The US District Court for the District of Columbia has ruled that the National Labor Relations Board's December 22, 2011 rule amending its election procedures is invalid because the Board did not satisfy the statutory quorum requirement in adopting the rule...

Custom Alerts: My dream. Your reality.

Posted on April 27, 2012
My dream is now a reality. Lawyer at the coffee shop with a smartphone. An email summarizes a court case that was handed down this morning. The opponent doesn't know about it. One click. Up pops the whole opinion. Read it, print it, forward it to a paralegal, send it to a client...

California employers must "provide" meal breaks, but need not "ensure" employees take them

Posted on April 12, 2012
Here it is: Brinker v. Superior Court (California 04/12/2012): Employee Hohnbaum brought a class action claiming violations of California Labor Code Sections 226.7 and 512, and California Industrial Welfare Commission Wage Order No. 5. The trial court granted a motion for class certification...

FMLA self-care provision is not enforceable against states - Coleman v. Maryland Court of Appeals

Posted on March 24, 2012
During my days as a full time law prof teaching constitutional law and employment discrimination this question came up annually: Exactly what is the extent of Congress' power under Section 5 of the 14th amendment? "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article...

School liability for supervisors' negligent supervision of molesting counselor

Posted on March 10, 2012
In C.A. v. William S. Hart Union High School (California Supreme Court 03/08/2012), the court held that a school district may be vicariously liable for its supervisors' negligent supervision of a counselor who allegedly molested a student. A high school student sued the school district and its administrators claiming that he was molested by a counselor...

Judge upholds NLRB notice posting rule, but not penalties for failure to post

Posted on March 02, 2012
National Association of Manufacturers v. NLRB (D. Dist of Columbia 03/02/2012) The National Association of Manufacturers and National Right to Work Legal Defense and Education Foundation sued to enjoin enforcement of the NLRB's new rule (taking effect April 30) requiring all employers subject to the NLRA to post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures...

Christopher v. SmithKline Beecham - update

Posted on February 09, 2012
Christopher v. SmithKline Beecham Corp. (11-204)    Issue: Whether pharmaceutical sales representatives were exempt from FLSA overtime-pay requirements as "outside salesmen."  Christopher, a pharmaceutical sales representative (PSR), sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay overtime...

US Supreme Court grants cert in MSPB appeal jurisdiction case

Posted on January 13, 2012
Today the US Supreme Court granted certiorari in Kloeckner v. Solis (US Supreme Ct cert granted 01/13/2012) Kloeckner appealed the Merit Systems Protection Board's (MSPB) final order of dismissal as untimely to the District of Columbia District Court, which transferred venue to the Eastern District of Missouri...

SCOTUS Argument recap: Mootness could squelch union fees case

Posted on January 13, 2012
Knox v. SEIU was argued at the US Supreme Court Tuesday. The issue is whether a public sector union must send a Hudson notice when it implements a mid-year dues and fees increase. Another issue is whether this case is now moot. For my recap of the oral arguments, see Argument recap: Mootness could squelch union fees case at SCOTUSblog...

Ministerial exception bars minister's termination suit against church

Posted on January 11, 2012
The US Supreme Court unanimously held that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Hosanna-Tabor Evangelical Lutheran Church and School v...

NLRB: Certain mandatory arbitration agreements violate federal labor law

Posted on January 06, 2012
D. R. Horton, Inc. and Michael Cuda. Case 12?CA?25764 (01/03/2012) The NLRB has ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court...

Robert L. Fletcher

Posted on January 06, 2012
Bob Fletcher, 93, died last week. At the University of Washington Law School, he was a giant of a teacher. Later he was a friend. While he was teaching me the intricacies of the rule against perpetuities, he was teaching (by his example) precision, respect, and courtesy...

When union fees go up, must a ?Hudson notice? go out?

Posted on January 05, 2012
I've written an article for SCOTUSblog on Knox v. Service Employees International Union (SEIU) [here]. The US Supreme Court will hear oral arguments on January 10 on the following two questions: (1) Whether a state, consistent with the First and Fourteenth Amendments, may condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a Hudson notice that includes information about that assessment and provides an opportunity to object to its exaction; and (2) Whether a state, consistent with the First and Fourteenth Amendments, may condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures...

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