Bass Berry & Sims Labor Talk

Terminated Employee Entitled to Union Representation Prior to Taking Reasonable Suspicion Drug Test

Posted in Labor Board Proceedings and Practice

The National Labor Relations Board (NLRB), in agreeing with an administrative law judge’s (ALJ) April 2013 ruling, has held that suspending and discharging a union member for refusing a drug and alcohol test after the employee demanded union representation is a direct violation of the National Labor Relations Act (NLRA).  Continue Reading

California Becomes Second State to Enact Paid Sick Leave Law

Posted in Wage and Hour Law and Practice

On September 10, 2014, California Governor Jerry Brown signed into law a bill providing most employees in California the right to earn up to three paid sick days per year.  Known as the Healthy Workplaces, Healthy Families Act of 2014, the legislation takes effect July 1, 2015.  California is one of only two states, with Connecticut, that mandates paid sick leave for employees.  Continue Reading

NLRB Rules “Contaminated-sandwich” Campaign is Protected Activity under the National Labor Relations Act

Posted in Union Organizing and Collective Bargaining

Can sandwich shop employees be protected from discipline even though they suggest to the public that sandwiches may be contaminated by sick workers?

  • Yes, said the NLRB
  • The decision affirms a continuing trend of cases that are significantly pro-employee.

Continue Reading

Court Enforces Notice Requirements for FMLA Medical Certification Forms

Posted in Leaves of Absence/FMLA Law and Practice

FMLA regulations require that an employer tell an employee, in writing, when certification forms must be returned and the consequences of failing to do so.  Recently, a federal appellate court upheld and enforced those requirements.

The FMLA certification process can be arduous for even the most diligent of employers.  Regulations impose some specific notice obligations.  A new Sixth Circuit ruling emphasizes how important dotting all the i’s and crossing all the t’s are to compliance with the Act.  Specifically, failure to provide a “return by” date on the FMLA notice form or otherwise notify an employee in writing that leave may be denied if medical certification is not provided within the allotted time may preclude an employer from denying leave under the Act.  Continue Reading

Termination During FMLA Leave Not Unlawful

Posted in Leaves of Absence/FMLA Law and Practice

Some employers believe that an employee who is out on FMLA cannot be disciplined or terminated. More savvy employers know that such a broad application is not quite accurate, as an employee’s request for or taking FMLA leave does not give the employee any greater rights than if the employee were actively at work. This case, here, is a prime example.

What happened?  The employee requested leave for birth of her child, and the leave was granted. While on leave, however, the employee visited the employer’s premises. While there, she took home 6 cases of sample baby formula (yes, the employer produces baby formula), and doing so was a clear policy violation (think – stealing). A co-worker reported the misconduct, and an investigation resulted in the employee’s termination. The employee then sued, claiming that she was terminated while on FMLA leave and thus the termination was unlawful. Continue Reading

Second Circuit Clarifies “Protected Activity” for Sarbanes-Oxley Act Retaliatory Discharge Claims

Posted in Retaliation/Whistleblower

Whether the plaintiff is actually engaged in “protected conduct” is always a key question when defending a retaliatory discharge claim. This certainly is true when such a claim is brought under the Sarbanes-Oxley Act (SOX).

On August 8, 2014, the Second Circuit Court of Appeals clarified the nature of the protected activity a successful SOX retaliatory discharge plaintiff must plead in order to survive a motion to dismiss. See Nielsen v. AECOM Technology Corp., Case No. 13-235-cv (August 8, 2014, 2nd Circuit).

Nielsen, a fire engineering manager, alleged that he was fired in retaliation for threatening to resign if the company continued to tolerate the conduct of one of his subordinates whom he claimed was allowing fire safety designs to be marked as approved without the subordinate actually having reviewed the plan. Continue Reading

Religious Discrimination – Employee’s Failure to Note Religious Objection Fatal to Her Claim

Posted in Discrimination and Harassment Law and Practice

Savvy employers know that legal and regulatory trends are toward candid and effective communication. Think interactive process under the ADA. But, at times, this same rule applies to employees. Here, an employee who refused to read the Rosary with a resident was terminated. The refusal was considered failing to perform a requirement of her job, since the resident requested that the prayer be read to her. This was the fifth incident in her 13 months of employment.

The employee later sued for religious discrimination and won a jury verdict. The Fifth Circuit reversed however. Why? Because the employee never claimed to a manager, before the termination decision, that the request to read the prayer was against her religious beliefs. Rather, the managers involved in the decision knew only of the employee’s refusal to perform the job duty, not that the refusal was tied to her religious beliefs. This decision is similar to the Tenth Circuit’s decision, written about here, regarding an employee’s request to wear a head covering but without having invoked the religious basis for the request.

Interestingly, in that Tenth Circuit case, the plaintiff was the EEOC, not the individual employee, and the EEOC recently asked the Supreme Court to grant permission for an appeal.

NLRB Sanctions “Micro-Unit” at Boston-Area Macy’s Store

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

Earlier this week, in a 3-1 decision in Macy’s Inc., the NLRB applied its controversial Specialty Healthcare decision in holding that an appropriate bargaining unit consists of employees in the cosmetics and fragrances department at a Boston-area Macy’s store, one of 11 store departments, and excludes all other sales employees at the store.  This is the first case in which the NLRB has applied the Specialty Healthcare standard to a retail employer. The NLRB’s decision is unwelcome news for employers, particularly in the retail industry, as it provides support for unions’ increasing efforts in seeking to organize “micro-units” consisting of small, discrete subsets of employees. Continue Reading

U.S. Supreme Court to Decide Court’s Authority to Review EEOC’s Conciliation Efforts

Posted in Discrimination and Harassment Law and Practice, Labor Board Proceedings and Practice

Can an employer challenge whether the EEOC has done its job in defense of a case brought by the EEOC?  The U.S. Supreme Court has agreed to decide that question.  The issue is whether courts have authority to review whether the Equal Employment Opportunity Commission (EEOC) properly engaged in efforts to “conciliate” a case prior to bringing a lawsuit under Title VII of the 1964 Civil Rights Act.  As savvy readers know, the EEOC has a statutory obligation, after finding “cause,” to attempt to negotiate a resolution of the discrimination charge prior to filing suit. Continue Reading

UPDATE: President Obama Poised to Sign Executive Order Barring Discrimination Based on Sexual Orientation

Posted in Discrimination and Harassment Law and Practice

On June 18, 2014, we reported that President Obama would sign an Executive Order prohibiting federal contractors from discriminating against LGBT individuals on the basis of their sexual orientation or gender identity.  As promised, on July 21, Obama issued the Executive Order.  This presidential action amended existing Executive Order 11,246, which applies to federal contractors, by adding sexual orientation and gender identity to the list of classes protected from employment discrimination.  This move also amended existing Executive Order 11,478 by explicitly prohibiting gender identity discrimination by federal government agencies for the first time.   Continue Reading