Bass Berry & Sims Labor Talk

Monthly Archives: January 2012

Employer Dilemma – How Should An Employer Respond to Ambiguous Workplace Conduct

Posted in Discrimination and Harassment Law and Practice

Employers struggle with conduct that appears ambiguous but is interpreted by the “victim” as unlawful.  The dilemma arises most often in a sexual harassment setting.  For example, a co-worker comments that another’s clothes make her “look good” or that he “really likes” her perfume.  Employers, and courts, struggle with the intent behind this conduct.  For… Continue Reading

Employers Beware – “How” You Do Is Often As Material As “What” You Do

Posted in Leaves of Absence/FMLA Law and Practice

A recent ruling reinforces that “how” an employer does what it does often is as important as what it does.  The case appeared relatively straightforward.  An employee missed a work shift and claimed intermittent FMLA leave.  One manager, who had been skeptical about some past intermittent leave use, saw the employee at a birthday party… Continue Reading

DOL Proposes New Rules Severely Limiting Home Care Worker Exemption

Posted in Wage and Hour Law and Practice

In a move that could significantly increase employer costs in the home care market, the Department of Labor has published proposed rules that will severely limit the current minimum wage and overtime exemptions for those who provide “companionship services.” The proposed rules basically do two things: The rules narrow the definition of “companionship services. The… Continue Reading

Court Rules That Two-Year Period After Demotion Not Fatal to Constructive Discharge Claim

Posted in Discrimination and Harassment Law and Practice, Retaliation/Whistleblower

A former elementary school principal, who was demoted to a physical education (P.E.) teacher, survives a summary dismissal of his constructive discharge claim despite a two-year gap between the demotion and his decision to retire.  Terry Gannon sued the Cannon County, Tennessee Board of Education for, among other things, discrimination and retaliatory constructive discharge in… Continue Reading

Labor Board Rules that Arbitration Agreements Forbidding Class Arbitration is Unlawful

Posted in Labor Board Proceedings and Practice

As a matter of federal law, employers can require employees to agree to arbitrate any employment dispute.  But, can that arbitration agreement force an employee to arbitrate only individual claims, not class (or collective) claims?  Recently, the National Labor Relations Board said NO.  Click here for the Board’s ruling. This ruling appears at odds with… Continue Reading

NLRB postpones effective date for Notice-Posting Rule

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

The NLRB has postponed by three months the effective date for its notice-posting rule at the request of a federal court overseeing a legal challenge to the regulation from business groups.  The new effective date is April 30, 2012. The rule requires businesses to post notices apprising workers of their right to unionize. Click here for… Continue Reading