Labor & Employment Developments Blog

The recently released 2012 EEOC enforcement statistics indicated an overall decrease in charges and increase in damages paid by employers.  Notably, for the second consecutive year, the EEOC reduced its pending inventory of private sector charges by 10% from fiscal year 2011, bringing inventory to 70,312.  However, the EEOC obtained the largest amount of monetary recovery in 2012, totaling $365.4 million.  Leading the states in originating charges was Texas at 9.0% of charges filed nationally, followed by Florida (8.0%) and California (7.4%).   

As the FMLA celebrates its 20^th birthday this February, social media continues to be an increasingly important resource for employers in combating frivolous FMLA interference and retaliation charges by former employees. 

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 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.” 

You may recall my post from a couple months ago about Brett Favre’s alleged harassment of a New York Jets employee, Jenn Sterger.  The NFL has completed its investigation and has been unable to substantiate any allegations that Favre violated league policies.  However, the commissioner did conclude that Favre failed to cooperate with the investigation and was less than candid so he fined him $50,000, which is pocket change to Favre.  I was not going to bother commenting on this sorry spectacle until I happened to hear ESPN’s “legal analyst” on Sportscenter this morning.  The analyst, who shall remain nameless, expressed the following opinions: 1) Sterger could sue Favre and the Jets, although there might be some statute of limitations issues; 2) Favre could be considered her supervisor because he was higher up the chain in the Jets organization than Sterger; and 3) if Sterger were to file suit, her case would likely get to a jury.  The only question I had after hearing this was how can I get an analyst job at ESPN because I can do better than this.   

As we head into the long weekend, I suspect that very few people contemplate the meaning of Labor Day.

In my last post, I discussed the pros and cons of arbitration of employment disputes, concluding that the pros outweigh the cons. I also noted that the Arbitration Fairness Act, which would ban forced arbitration in employment disputes, is looming on the horizon. I ended with the question: What should you do if the Arbitration Fairness Act passes? As promised, here are a few suggestions.