KMK Law Management Rights Blog

NLRB axes Lutheran Heritage Standard

In a 3-2 decision, the NLRB overruled its prior decision regarding how it analyzes whether a facially neutral workplace rule, policy or employee handbook provision interferes with the exercise of rights protected by the National Labor Relations Act (“NLRA”).

Recently, many health care employers and other large corporations have implemented programs requiring their employees to get a flu vaccination. Some legal experts have suggested that these mandates may be problematic for employers.  Specifically, employers may face religious based objections under Title VII of the Civil Rights Act of 1964, or disability based objections under the Americans with Disabilities Act.  According to the U.S. Equal Employment Opportunity Commission, it has filed lawsuits in recent years against employers under Title VII where employees were fired for objecting to a vaccination for sincere religious beliefs.  The EEOC has also stated that a company would likely violate the ADA, if it were to take adverse action against an employee who refused to get a flu vaccination for a disability related reason, such as an allergic reaction to the vaccine.

The new term of the Supreme Court began last Monday, October 2, and the first case up has the potential to affect millions of employers and employees across the country. The case, Epic Systems Corp v. Lewis (which was consolidated with two other cases, Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA) examines whether employment agreements requiring employers and employees to resolve employment-related disputes through individual arbitration and waive class and collective proceedings are enforceable under the Federal Arbitration Act (FAA), notwithstanding the provisions of the National Labor Relations Act (NLRA).

In a memo issued last Wednesday, October 4, 2017, Attorney General Jeff Sessions announced that the Department of Justice will no longer take the position that Title VII of the Civil Rights Act of 1964 encompasses discrimination based on gender identity per se, including transgender status.  This reverses the position of the DOJ that was announced by then-Attorney General Eric Holder in 2014 under the Obama Administration. 

On Tuesday, the Seventh Circuit sitting en banc announced its decision in Hively v. Ivy Tech Community College of Indiana, creating a circuit split and setting the stage for a potential Supreme Court battle over the scope of Title VII.

The annual NCAA Basketball Tournament, a/k/a March Madness, starts today. More on that below but there is another kind of “March” for employers to be concerned about.