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Employment Litigation

The EEOC Weighs In on Sexual Orientation and Title VII

On July 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a 3-2 decision finding that under Title VII, sex discrimination includes actions based on sexual orientation. The decision involved an appeal from a Federal Aviation Administration (“FAA”) dismissal of a sexual orientation discrimination complaint. The issue before the EEOC was whether a complaint alleging discrimination based on sexual orientation in violation of Title VII lies within the EEOC’s jurisdiction. Apparently buoyed by the U.S. Supreme Court’s recent decision on same sex marriage, the EEOC unequivocally answered that question with a resounding “Yes.”

White Collars May Turn Blue: Prepare for New Rules on Overtime Eligibility

Responding to a call by President Obama last year, the U.S. Department of Labor this week issued a proposal to update the regulations governing which employees qualify for the “white collar” exemptions to federal minimum wage and overtime pay requirements. Currently those exemptions – for executive, administrative and professional employees – require the workers to meet job duties-related tests and receive a salary of at least $455 per week, or $23,660 annually. Certain computer and outside sales employees are also exempted.

Young v. UPS – An Important Case on Pregnancy Discrimination

On March 25, 2015 the United States Supreme Court issued its opinion in Young v. United States Parcel Service. This is an important case because it clarifies what constitutes unlawful discrimination under the Pregnancy Discrimination Act (“PDA”). Employers should carefully review this case and ensure that they are not inadvertently discriminating against pregnant employees by refusing to accommodate their temporary physical restrictions.

Administrative Agencies Cracking Down on Overly Broad Arbitration and Severance Agreements

The Supreme Court’s pro-arbitration and pro-alternative dispute resolution jurisprudence is being met with opposition from administrative agencies, especially the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”). As a result, common employment practices, such as mandatory arbitration provisions and severance agreements, are being subject to intense legal scrutiny.

Supreme Court Affirms D.C. Circuits’ Noel Canning Decision, Hundreds of NLRB Decisions May Be Moot

Last week, the United States Supreme Court held that the purported “recess appointments” of NLRB Members Block, Flynn and Griffin were unconstitutional. See N.L.R.B. v. Canning, 12-1281, 2014 WL 2882090 (U.S. June 26, 2014). Therefore, the Board will have to reconsider and reissue hundreds of prior opinions.

Kansas City Area Restaurants Targeted by Union Organizers

The Union is acting as though it is a public interest group that is seeking to increase the minimum wage to $15. But its true goal is to become the restaurant workers’ exclusive bargaining representative. First, the Union ingratiates itself with restaurant workers by advocating for a substantial increase in the minimum wage. Second, it asks the workers to sign letters that they support and will participate in a strike with other employees in support of a minimum wage increase. Then the union seeks employee signatures on union authorization cards. Finally, once it has collected a sufficient number of signed authorization cards, it files an election petition with the National Labor Relations Board (“NLRB”).

Inflexible Leave Policies can Protect the Rights of the Disabled

Last week, the 10th Circuit Court of Appeals issued its decision in Hwang v. Kansas State University, and directly addressed the legality of so-called “inflexible leave policies,” i.e., policies that set an exact limit on the amount of leave an employee can take.  In that case, Ms. Hwang was hired as a professor at Kansas State and was diagnosed with cancer.  Kansas State had a policy that allowed for no more than six months’ sick leave.  Ms. Hwang argued that this “inflexible” policy was illegal on its face.  The 10th Circuit disagreed.

FMLA Leave – 7th Circuit Rejects Participation in Ongoing Treatment Requirement

HR managers are frequently asked to decide whether employee requests for unpaid time off qualify as leave protected by the Family Medical Leave Act (“FMLA”). The FMLA gives eligible employees a right to take up to twelve weeks of unpaid leave in order to care for their spouse, son, daughter or parent if that person has a serious health condition. See 29 U.S.C. § 2612(a)(1)(C) (2013) (emphasis added). Some courts have held that “caring for a family member with a serious health condition involves some level of participation in ongoing treatment of that condition.” See Marchisheck v. San Mateo County, 199 F.3d 1068,1076 (9th Cir.1999).

Is Marijuana Use a Lawful Off-Duty Activity Under Colorado Law? Supreme Court Agrees to Decide

The Colorado Supreme Court has agreed to hear a case that will determine whether marijuana use, at least for medicinal purposes, is a lawful off-duty activity under Colorado’s statute that prohibits an employer from discharging an employee for engaging in any lawful activity off the premises of the employer during nonworking hours. The decision will directly impact whether employers in Colorado can have and implement zero tolerance drug policies that include marijuana within their scope.

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