Labor & Employment Developments Blog

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.  

It has been a rough year for employers so far after several adverse decisions from the Supreme Court.  Not wanting to be left out, the Equal Employment Opportunity Commission (EEOC) issued its final rule implementing regulations under the ADA Amendments Act (ADAAA) on March 25, 2011.  The new regulations go into effect on May 24, 2011.  There has been a lot of discussion online about the meaning of the regulations but they are not surprising and are for the most part consistent with the ADAAA itself.  The essence is that employers can forget about challenging a plaintiff’s claim that he or she is disabled in all but the most extreme cases.  As just about everyone previously concluded when the ADAAA became law, disability discrimination cases now turn on the reason for adverse employment action, the interactive process and/or the reasonableness of accommodations.  If you are interested in details, some specifics points from the regulations follow. 

Today, March 22, 2011, the Supreme Court issued its decision in the Kasten v. Saint-Gobain Performance Plastics Corp. case.  The sole issued addressed by the Court was “whether ‘an oral complaint of a violation of the Fair Labor Standards Act’ is ‘protected under [the Act’s] anti-retaliation provision.’”  Given the recent spate of pro-employee decisions, it is hardly surprising that the Court answered the question in the affirmative.  The court began its analysis by noting that the FLSA protects employees who have “filed any complaint.”  The decision by Justice Breyer focuses on the meaning of those three words – filed any complaint.  While he concludes that the words in isolation are open to competing interpretations, consideration of the language in view of its purpose and context permits only one interpretation.  I will spare you the lengthy – some might say tortuous reasoning – and go straight to the holding: 

In my last post, I discussed the Sixth Circuit’s recent decision in Lewis v. Humboldt Acquisition Corp., which upheld the current Sixth Circuit standard that a plaintiff must show that his or her disability was the “sole reason” for the adverse employment action; sometimes referred to as the “solely” standard.  Of the ten circuits to consider the issue, eight apply a “motivating factor” (or “substantial cause”) test, under which a plaintiff must only show that a disability was a motivating factor of the adverse employment action. 

The Sixth Circuit issued a decision in Lewis v. Humboldt Acquisition Corp. on March 17, 2011 that is based on an interesting anomaly in the Sixth Circuit’s treatment of ADA claims.  Ms. Lewis was a registered nurse who began working at the Humboldt Manor Nursing Home in July 2004.  Sometime in September 2005, she developed a medical condition that “among other things, affected her lower extremities.”  As a result of the condition, Ms. Lewis sometimes used a wheelchair.  Humboldt Manor terminated Ms. Lewis’ employment in March 2006 because of an “outburst” that she had at the nurses station.  Three co-workers testified that she yelled, criticized supervisors and used profanity.  Ms. Lewis and another employee testified that she was upset but did not act inappropriately.  Ms. Lewis alleged that the true reason for her termination was her use of a wheelchair and that Humboldt Manor exaggerated the severity of her behavior to use it as a pretext for disability discrimination. 

The big news in employment law this week was the Supreme Court’s decision in Staub v. Proctor Hospital, the so-called “cat’s paw” case.  For those of you not familiar with the term, the cat’s paw theory holds an employer liable for the discriminatory animus of a manager who played no role in the adverse employment decision but exerted some influence over the actual decision maker.  

I came across an interesting article in The New York Times about hospitals and medical businesses in many states adopting strict policies against hiring smokers.

The first significant Supreme Court pronouncements on employment law are here and both seem tailored to create further litigation.  The first, decided late last week, is NASA v. Nelson, unanimously reversing a 9th Circuit decision that government employment background check questionnaires violated the constitutional right to “information privacy.”