KMK Law Management Rights Blog

There have been a couple of interesting developments this week in labor and employment law.  First, some may recall that I posted earlier this summer about the employment practice of refusing to consider the unemployed for open positions.  I mentioned at the time that a bill had been introduced, the Fair Employment Act of 2011 (H.R. 1113), that would amend Title VII to add “unemployment status” to the list of protected classes.  Employment Law Matters reports that the effort to pass such a law continues:

Those of you who follow such things have no doubt enjoyed the recent federal court decisions taking the EEOC to task for its “sue first, ask questions later” approach to class action litigation.  As one commentator has noted:

Perhaps the most notable of these recent cases is EEOC v. CRST Van Expedited, Inc., in which the U.S. District Court for the Northern District of Iowa dismissed a sexual harassment case filed by the EEOC on behalf of 67 women, and awarded CRST more than $4 million in attorneys’ fees. The district court, in finding the EEOC’s prosecution of the case to be frivolous, unreasonable and without foundation, sharply criticized the EEOC’s litigation strategy as one of “sue first, ask questions later.” Here, the district court found that the EEOC failed to investigate the specific allegations of the 67 class members until after the civil action was commenced. In fact, the EEOC had not interviewed any of the women who were supposedly sexually harassed and did not subpoena any documents to determine if the allegations were true. Before filing suit, the EEOC also did not identify any of the 67 female class members and did not attempt to conciliate the allegations of those women. In the end, the district court found that the EEOC had not complied with its own administrative requirements and dismissed the case due to the jurisdictional defects. 

As some readers may have noticed, I have been on a brief hiatus from blogging.  This was primarily due to my real job, practicing labor and employment law, and a much needed vacation.  I am back now and offer you some interesting reading that I came across recently: 

I ran across an interesting debate in a recent issue of the USA Today over the issue of job postings.  Apparently, some employers have been posting jobs with a statement that the unemployed need not apply. 

In a story widely reported in the news last year, the EEOC sued Kaplan Higher Education Corporation, a nationwide provider of postsecondary education, alleging that it engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black job applicants nationwide.  The suit was based on the allegation that since at least 2008, Kaplan had rejected job applicants based on their credit history and that the practice had an unlawful discriminatory impact because of race.  One issue that arose in the case was the proper scope of the class of claimants in pattern or practice suits brought by the EEOC.  Specifically, whether individuals claiming to aggrieved more than 300 days before the filing of the charge that triggered the EEOC’s investigation could be included in the class.  This week, the Court answered that question in the negative, holding that the plain language of Title VII does not carve out an exception for the EEOC to bring untimely claims. 

The NLRB’s interest in social media has been in the news recently and I have commented on it here and here.  The assault on employers’ efforts to manage their employees use of social media as it pertains to the workplace continued this month with two new cases.

The fast food chain Carl’s Jr. was sued this week in a class action brought by California managers who claim they were not paid for expenses incurred while driving for work-related purposes.  The lead plaintiff claims that she regularly drove her personal vehicle to meetings, other restaurants and banks but was not reimbursed for mileage or other expenses.  

It seems that all issues in employment law have their day in the sun and then another and another, etc.  I have noticed in the past couple of weeks that several issues I have commented on have come up again.  In no particular order, here is an update.  

A recent decision from a United States District Court in Maryland may be of interest to employers involved in litigation with the EEOC, or those that may someday be involved in litigation with the EEOC. 

This week, the National Labor Relations Board told Thomson Reuters that it will file a civil complaint accusing the company of illegally reprimanding a reporter over a public Twitter posting criticizing management.  The reporter posted the following to a Reuters Twitter address: “One way to make this the best place to work is to deal honestly with Guild members.”  She was subsequently advised by Reuters’ management that she should not have published a post that could damage the company’s reputation.  Although she has indicated that she felt intimidated, it is not clear whether she was actually disciplined for the post.  The NLRB has taken the position that Reuters violated the reporter’s federally protected right to engage in concerted, protected activity with co-workers to improve working conditions.  Although this is the first incident involving Twitter, it is not the NLRB’s first foray into the realm of social media.  In October 2010, the NLRB filed a complaint against an ambulance company in Connecticut on behalf of an employee who had been terminated because she had posted negative comments about her supervisor on her personal Facebook page in violation of the company’s blogging and internet posting policy.  That case was settled in February 2011.