June 18, 2014

United States Supreme Court Invalidates President's NLRB Recess Appointments in NLRB v. Noel Canning

In an unsurprising, yet disheartening, ruling, the United States Supreme Court held in NLRB v. Noel Canning that President Obama's recess appointments to the National Labor Relations Board (NLRB) were invalid because the United States Senate was still "in session." In the broad sense, this will severely limit President Obama's or any future president's ability to evade a Senate filibuster and appoint individuals to fill government agency positions. In the more narrow sense, it not only invalidates President Obama's NLRB recess appointments but also potentially the decisions those members made that affect workers across the country.

u-s--supreme-court-roof-and-columns-658253-m.jpgThe situation began back in 2012, when President Obama used the recess appointment power to appoint members to the understaffed NLRB. These members had already been nominated, but Senate Republicans refused to permit a Senate-wide vote, instead opting to filibuster the nominees. At the time, a filibuster of presidential appointments required a 60-vote threshold to overcome, a tough challenge in the sharply divided Senate. Since that time, the rule has been changed so that only a simple majority is required for approval of recess appointments. During the winter break, Senate Republicans held pro forma sessions every three days to prevent the body from truly going into recess in order to prevent President Obama recess appointments.

The Supreme Court justices were unanimous in their view that the recess appointments were not valid in this case, but they differed in terms of how they would have applied the recess appointment power correctly. The majority, consisting of Justice Breyer, Justice Kennedy, Justice Ginsburg, Justice Sotomayor, and Justice Kagan, stated that the President had the right to make recess appointments, but not when the Senate considered itself to be "in session." The Senate had the right to determine when it was still in session. The remaining justices, Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito, agreed with the opinion, but stated that they would have gone further, banning all recess appointments except for when vacancies arose during the recess.

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June 11, 2014

Three Supreme Court Decisions This Month Could Have a Major Effect on Employment Law Across the Country

The United States Supreme Court is expected to issue rulings this month on three cases that could have a significant impact on employment across the country, including Kentucky and Indiana.

u-s--supreme-court-1-1038827-m.jpgOne case that has been discussed on this blog, Burwell v. Hobby Lobby, involves whether a closed corporation can refuse to comply with the Affordable Care Act mandate that requires employers to provide health plans to their employees that include birth control coverage. The owners of Hobby Lobby, an Arkansas-based craft store chain, believe that all forms of birth control are "abortofacients" and that the birth control mandate imposes too great a burden on their free exercise of religion. Until this point, the only institutions exempt from the birth control mandate have been religious institutions, not private companies.

Hobby Lobby asks the question of whether corporations can have "religious beliefs," even closed corporations. Furthermore, what does it say if the Supreme Court allows private employers to always exercise their religious beliefs at the expense of their employees' beliefs? Is it fair for an employer's freedom of religion to outweigh the employee's?

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June 4, 2014

Seventh Circuit Rejects En Banc Request in Donning and Doffing Case

The Seventh Circuit declined to rehear the issue of whether employees should be paid for donning and doffing their clothing. In contrast to another Seventh Circuit case involving the issue, eventually decided by the U.S. Supreme Court, this case involved food processors of JCG Industries and Koch Foods.

construction-workers-872475-m.jpgThe more recent case involved a class-action lawsuit by JCG and Koch employees who worked shifts that were 8.5 hours long. They claimed that, as part of their work schedule, they were required to clock in 15 minutes before the start of their shifts in order to don their work clothing. In addition, they were required to remove their clothing before lunch, which was 30 minutes of unpaid time. Because of the time required to don and doff, the employees claimed that they never had a full lunch break and should have been paid overtime for the extra time spent donning and doffing.

However, the Seventh Circuit panel disagreed, prompting the employees to file an appeal for the case to be heard en banc, or by all of the Seventh Circuit judges. In a 6-4 decision, a majority of judges denied a rehearing. They supported the panel's finding that, rather than a continuous workday, as defined by the Fair Labor Standards Act (FLSA), the lunch break represented the end of the first of two four-hour shifts. The employees therefore were not entitled to overtime pay.

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May 28, 2014

Fast Food Workers Go Back On Strike After Attempts to Raise the Minimum Wage Fail

Recently, fast food workers in Indiana and Kentucky went on strike again -- a message that the issue of fair wages will not disappear after the United States Senate failed to pass a bill for a wage increase. That increase would have raised the current federal minimum wage from $7.25 an hour to $10.10 an hour.

burgers-on-the-grill-129504-m.jpgThe U.S. Senate held the vote late last month, with Indiana's Senators splitting - Senator Donnelly voting in favor and Senator Coats opposing - and both of Kentucky's Senators voting in opposition. Even though the measure had bipartisan support, it could not get the 60 votes needed to prevent a Republican filibuster. Thus, even though there were more than 50 votes lined up to pass the bill, it failed. Had it succeeded, there is no guarantee that a similar measure would have passed the Republican-led House of Representatives.

Those in favor of the bill, like Senator Donnelly, claimed that it would create more opportunities for families in Indiana and elsewhere. Right now, a parent could work a full-time job and still fall below the poverty line. By contrast, Coats and others who opposed the bill claimed that raising the minimum wage would kill one million jobs and only help 19 percent of those currently in poverty.

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May 19, 2014

Sixth Circuit Finds That Employee Fired For Internal Email Is Not Protected By ERISA Whistleblower Provisions

The Sixth Circuit Court of Appeals recently tightened the definition of who could be considered an employee whistleblower in Sexton v. Panel Processing, Inc.

designing-on-a-tablet-1361061-m.jpgThe case involved Brian Sexton, who worked as a general manager for Panel Processing in its Coldwater, Michigan facility, as well as trustee for the company's employee retirement program. In 2011, Sexton and one of the other trustees campaigned on behalf of two employees who were running for Panel Processing's board of directors. Though these employees won election, the board refused to seat them because it would violate the company's bylaws, which placed a limit on the number of inside directors. The board also removed Sexton and the other trustee from the retirement plan trusteeship.

Sexton responded by sending an email to the chairman of the board. In it, he complained that the board's actions were violations of both ERISA and the state's Corporations Business Act, as well as other state and federal laws. Sexton stated that he intended to bring these violations to the attention of the federal Department of Labor and the state Department of Licensing and Regulatory Affairs unless they were corrected immediately.

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May 9, 2014

Seventh Circuit Upholds Weakening of Collective Bargaining Rights in Laborers Local 236 v. Walker

A recent Seventh Circuit case involving Wisconsin could have implications for Indiana collective bargaining agreements. In Laborers Local 236 v. Walker, the Seventh Circuit rejected a constitutional challenge to a controversial law that restricted the collective bargaining rights of public employee unions.

peace-3-128318-m.jpgWisconsin's Act 10, also known as the Wisconsin Budget Repair Bill, was passed in 2011, purportedly to address an expected $3.6 billion budget deficit. The Act impacted public sector employees' collective bargaining rights, along with compensation, retirement, health insurance, and sick leave. Notably, it prevented the state from even recognizing unions unless 51 percent of all potential members, not just those voting, supported the union in annual elections. Only police and fire department employees were exempted. Public sector employees charged the legislature and Governor Scott Walker with using Act 10 as a ruse to weaken their union protection, and that Act 10 was no meaningful budget solution.

The Act went through a series of legal challenges, including that it infringed upon federal constitutional protections, violating the Equal Protection Clause of the Fourteenth Amendment and the First Amendment. In September 2013, a district court judge rejected this argument, claiming that it did not violate the free association clause of the First Amendment because the First Amendment did not require an affirmative response from government entities, simply the absence of a negative restriction. Nor did the law impermissibly disadvantage represented employees -- or those who chose to express their grievances by joining a union. The judge claimed that because union representation is not a suspect classification, it is only entitled to a rational basis review, the lowest standard required. Under that low standard, the state of Wisconsin had a rational basis for passing Act 10.

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May 2, 2014

Sixth Circuit Finds That Telecommuting Is a Reasonable Accommodation in EEOC v. Ford Motor Company

In a recent ruling, the Sixth Circuit Court of Appeals expanded the instances where telecommuting could be considered reasonable accommodation for employees who were disabled.

laptop-work-1260785-m.jpgEEOC v. Ford Motor Company, Jane Harris was hired in 2003 to be a resale buyer at Ford, a position that required her to be the intermediary between steel suppliers and "stampers," or companies that used steel to manufacture parts for Ford. One role of the resale buyer was to respond to emergency supply issues in order to ensure that there was no gap in steel supply to the parts manufacturers. While some individual tasks, like updating spreadsheets and periodic site visits, were involved, the core of the job was to group problem solve, requiring the buyer to be available to interact with members of the resale team, suppliers, and other members of Ford when there were problems. Ford managers had determined that these types of meetings were best conducted face-to-face, and that email and teleconferencing did not work as substitutes.

Harris suffered from a condition called irritable bowel syndrome, which caused her significant distress. On her worst days, she was unable to drive to work or stand up from her desk without soiling herself. As a result, she began to take leave under the Family and Medical Leave Act (FMLA). During her employment, Harris was considered to be a competent, but not perfect employee. Performance reviews taken from 2004 to 2008 rated her as "excellent plus" and noted that she worked diligently with "minimal supervision." However, she received low rankings on her contribution assessment, and on most job-related skills in 2007 and 2008. After she began taking FLMA leave, her absences hurt her job performance. In order to help her keep up, Harris's supervisor let her do a flex-time telecommute schedule where Harris worked evenings and weekends to keep up with her work. However, Ford did not credit her with work performed outside of core business hours because she could not engage in team problem solving or access suppliers for information.

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April 23, 2014

Sixth Circuit Affirms Lower Court's Ruling Against EEOC in EEOC v. Kaplan Higher Education Corporation

The Sixth Circuit recently sided against the Equal Employment Opportunity Commission (EEOC) in a case involving whether black applicants for employment were rejected at a higher rate than white applicants due to their credit scores.

prancheta-192682-m.jpgIn EEOC v. Kaplan Higher Education Corp., Kaplan offered both graduate and undergraduate degrees, with some of the students receiving financial aid through the Department of Education. As Kaplan's employees had access to student financial records, there was a troubling string of events where employees were stealing checks intended for students and causing other irregularities. To prevent further problems, Kaplan installed a pre-employment credit check system for anyone applying to executive, financial aid, or accounting positions.

Third-party vendors performed the credit checks, flagging any applicants who filed for bankruptcy, were delinquent on their child support payments, any outstanding civil judgments worth more than $2,000, garnishment of wages, and Social Security numbers that did not match what the credit bureau kept on file. Kaplan then reviewed the applications and determined which ones should move forward.

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April 16, 2014

Federal Court in Indiana Allows Class-Action FLSA Suit to Move Forward After Partially Denying Motion to Dismiss

This past month, a federal court in Indiana allowed a class-action employment suit to move forward after affirming in part and denying in part the employer's motion to dismiss. In Harris v. Reliable Reports, Inc., the named plaintiff, Matthew Harris, claimed that the Fair Labor Standards Act (FLSA) and wage and hour laws in six states had been violated. He sought court certification for a class-action lawsuit.

house-in-field-of-flowers-1440514-m.jpgHarris initially filed a 44-page complaint against Reliable Reports, Inc., for whom he had worked as a field reporting specialist from March 2011 to April 2013. Reliable Reports operated in 22 states, where it employed field reporting specialists to inspect both residential and commercial properties. Part of a field reporting specialist's job was to log into Reliable Reports's computer network to download addresses of properties to be inspected; call to arrange inspection appointments and prepare route maps; load coordinates into their GPS units; drive to inspection sites and inspect and photograph the properties; respond to calls and texts from Reliable Reports and other interested parties; contend with traffic delays; and log into the computer network at the end of the day to enter hours worked and miles traveled.

For this, field reporting specialists were paid at a piece rate, which meant that they received a set fee for every report of the inspection completed and passed, as opposed to a standard hourly rate. Harris claimed that despite traveling hundreds of miles from home each day, field reporting specialists were not compensated for that time. Nor did they receive a true lunch break, being required to drive to appointments, get gas, or respond to calls during that time. Overall, though Harris claimed to have worked 60 to 65 hours per week, he had just $21,334.19 to show for it. Reliable Reports allegedly told employees that they must not report their actual hours and miles. The company also failed to fully compensate employees for mileage, despite claiming that it would in the employee manual.

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April 9, 2014

NLRB Rules That College Football Athletes At Private Universities Can Form Unions

A recent decision by the National Labor Relations Board (NLRB) could dramatically alter the current college football system in Kentucky, Indiana, and across the United States. Among other things, it might pave the way for athletes in college programs to be paid.

football-1-645083-m.jpgThe NLRB ruled in favor of the College Athletes Players Association (CAPA), finding that college football players are employees rather than student athletes, and have the right to form a union. At present, this right belongs only to athletes at private colleges, whereas athletes at public institutions would need to petition their state's labor board. Northwestern, the university that lost the case, has vowed to appeal the NLRB's ruling.

The case began in February, when college football players at Northwestern petitioned their coaches and university to form a union. When the petition was refused, one of the athletes, Kain Colter, took the lead in seeking a legal appeal, aided by the United Steelworkers. They filed their case with the local Chicago NLRB, explaining that while college football players were treated as "student athletes," their labor and the profits they brought to their schools made them more akin to employees. Northwestern alone enjoyed revenues from its football program in the amount of $235 million between 2003 and 2012.

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April 2, 2014

United States Supreme Court Expands Protections For Employee Whistleblowers in Lawson v. FMR

Last month, the United States Supreme Court issued a ruling that provided for more protection for whistleblowers that work for private contractors of public companies in Lawson v. FMR. The six to three decision expanded the protections of the federal Sarbanes-Oxley Act of 2002, which was established to promote accountability from publicly traded companies following a wave of scandals around that time.

whistle-718988-m.jpgIn Lawson, Jackie Hosang Lawson was employed as a Senior Director of Finance for Fidelity Brokerage Services, LLC. Fidelity Brokerage was related to the mutual fund corporation, Fidelity. Lawson eventually objected to the financial reporting practices of FMR, LLC, which was a Fidelity mutual fund advisor. In a whistleblower filing that she submitted to the Occupational Safety and Health Administration, which reviews Sarbanes-Oxley claims, Lawson argued that due to her objections, she suffered retaliation and was forced to resign. The case eventually went before the First Circuit, where Fidelity argued that Sarbanes-Oxley's protections were meant to apply only to the employees of public companies, not their private contractors. The First Circuit agreed, in a divided opinion, and Lawson petitioned the Supreme Court.

The Sarbanes-Oxley Act states that "[n]o public company... or any... contractor of such company may [retaliate] against an employee... because of [a Sarbanes-Oxley protected activity]." However, a decision issued later by the Department of Labor's Administrative Review Board (ARB) found that the employee of a contractor who acted as a whistleblower against a public company also received protection under the Act. The problem was that "employee" under the Act had no definition. In reading the rest of the Act, it was possible to come up with two definitions: one that applied just to employees of public companies, and another that applied to employees of contractors and agents.

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March 26, 2014

Sixth Circuit Affirms and Reverses Lower Court Ruling on Title VII Claim in Laster v. City of Kalamazoo

Recently, the Sixth Circuit Court of Appeals affirmed a federal district court's ruling dismissing an Ohio safety officer's claims that he was forced to resign from the Kalamazoo Department of Public Safety in 2010 due to racial discrimination.

ready-to-roll-542939-m.jpgIn Laster v. City of Kalamazoo, Mark Laster, an African American man, had worked for the Kalamazoo Department of Public Safety for more than 23 years. During his employment, he claimed that he was treated less favorably than other employees in similar situations. For example, Laster believed that he was subjected to greater scrutiny, that policies were selectively enforced against him, and that his employer stood back and permitted individual employees to discriminate against or harass Laster. Laster believed that at least part of his treatment was due to his race. After reporting many instances of harassment to his employers, he eventually filed a claim with the Equal Employment Opportunity Commission, then Title VII discrimination and retaliation claims against his former employer.

The district court found in favor of the City of Kalamazoo and Laster appealed. The Sixth Circuit applied strict scrutiny to the circumstances of his case, which is required for racial discrimination cases involving government bodies. For a government body to pass strict scrutiny, it must be shown that it had a compelling government interest, that the law or policy was narrowly tailored to achieve that interest, and that the law or policy was the least restrictive means for achieving that interest. Strict scrutiny is used for race, national origin, or alienage situations, compared to intermediate scrutiny for gender and rational basis (the lowest scrutiny) for nearly everything else.

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March 19, 2014

New Medical Marijuana Laws Threaten to Clash With Employer Zero Tolerance Drug Policies

A recent problem in Illinois with employment and medical marijuana could foreshadow problems for Kentucky, which has its own medical marijuana legislation pending.

dutch-weed-2-jpg-1206038-m.jpgIllinois's new medical marijuana law, which took effect this past January, protects patients from being arrested or prosecuted for using marijuana for medical purposes. However, it does not prohibit employers with zero tolerance policies from terminating employees found to use medical marijuana.

It is unknown how many employees could be affected, but one concern is that in states with medical marijuana laws that are less restrictive -- such as California, Oregon, and Washington -- the courts have sided with employers when employees have sued over the law. While Illinois's new law protects employees from being disciplined by employers solely for acknowledging that they have a medical marijuana card, it offers no protection against other strict measures. Companies with government contracts are even more likely to have zero tolerance policies than other companies because the federal government requires such policies.

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March 12, 2014

Seventh Circuit Finds That Employee Who Traveled to Las Vegas Was Covered By the FMLA in Ballard v. Chicago Park District

Not long ago, the Seventh Circuit Court of Appeals found that a woman's trip to Las Vegas during her Family and Medical Leave Act (FMLA) time off from work did not violate the requirements of the law.

las-vegas-nights-3-753037-m.jpgThe FMLA permits a "qualified" employee to take up to 12 weeks of unpaid leave for medical reasons, in order to care for a sick family member, or in the case of pregnancy or adoption. Qualified employees are those who work at companies with 50 or more employees and have worked more than 1,250 hours within the preceding 12 months.

In Ballard v. Chicago Park District, Beverly Ballard was a Chicago municipal employee who was the primary caregiver of her mother, who suffered from end-stage congestive heart failure. Ballard lived with her mother while she began to receive hospice support through Horizon Hospice and Palliative Care. Ballard's care of her mother included cooking meals, administering insulin and other medications, draining fluid from her heart, bathing and dressing her, and helping her go to bed. In 2007, Ballard's mother informed Horizon that one of her end-life goals was to go on a trip to Las Vegas. The trip was funded through the Fairygodmother Foundation and was expected to last six days in January 2008.

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March 5, 2014

Sixth Circuit Reverses Lower Court's Judgment in FMLA Case Clements v. Prudential Protective Services, LLC

The Sixth Circuit Court of Appeals recently reversed a lower court decision in favor of the employer on an issue involving rights under the Family and Medical Leave Act (FMLA). In Clements v Prudential Protective Services, LLC, the Court found that the employer's failure to inform a pregnant employee of her FMLA rights, and to reinstate her to either her former position or to an equivalent position after her leave, wrongfully interfered with her rights under the FMLA.

guard-1063331-m.jpgTelitha Clements was hired by Prudential Protective Services as a security guard in 2006, and worked at the New Center, Fisher and Kahn buildings in Detroit, Michigan. Throughout her employment, she had one supervisor, Lamont Lively. In 2008, Clements became pregnant with her second child, whom she gave birth to in June 2009. She gave Lively notice of her pregnancy, and her last day at work before her leave was May 23, 2009. Lively told Clements to contact him when she was ready to return to work, and he would put her back on schedule. Although Lively later claimed that Clements needed to contact the main office to properly schedule her maternity leave, neither Clements nor Lively contacted the main office. Neither Clements nor Lively filled out any paperwork, either. Clements was not paid for any part of her time off.

Clements tried several times to contact Lively in early July 2009, an estimated six weeks after her maternity leave began, to request to be returned to the schedule. She could not reach him due to his leave of absence to deal with a personal matter. Instead, a woman named "Sabrina" relayed messages between Clements and Lively. Lively told Sabrina to inform Clements that the number of hours scheduled for security guards at the complex had been scaled back due to a lack of business and that Lively could not return Clements to the schedule at that time. While Lively claimed later that he directed Clements to report to the main office for an assignment at another site, Clements stated that she never received the information.

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