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Federal Judge Says NLRB’s Revised Election Rule Was Improperly Implemented (US)

UPDATE: June 1, 2020: The NLRB announced via a press release and General Counsel memorandum that notwithstanding the judge’s order remanding the rule to the NLRB for reconsideration, “it will implement in full all of the rule changes unaffected by the recent U.S. District Court order.”  Accordingly, the following provisons in the rule are in … Continue Reading

And now for something completely different – EU abuse principles sink self-serving contract variation

Quite a fun little case on TUPE this week, if you like that sort of thing (and on the upside, even if you don’t, at least it has nothing to do with COVID-19). Regulation 4(4) of TUPE states that TUPE-related changes to terms of employment are void in most circumstances.  This has long been read … Continue Reading

NLRB Adopts A Bright-Line Rule Voiding Union Election Ballots With Stray Marks (US)

With almost all of the current news being focused on coronavirus-related topics, it’s easy to forget that courts and agencies continue to do their jobs, issuing decisions and opinions. On occasion, one of those decisions is significant enough to warrant a distraction from all things COVID-19. A recent National Labor Relations Board (NLRB or Board) … Continue Reading

U.S. Women’s National Soccer Team’s Equal Pay Act Claim Dismissed, But Other Gender-Based Claims Remain (US)

Our colleague Jacob Davis at Squire Patton Boggs’  Sports Shorts blog discussed the recent ruling in the Equal Pay Act and Title VII case brought by members of the U.S. women’s national soccer team against U.S. Soccer alleging that they were discriminated against by being paid less than their male counterparts.  On Friday, May 1, … Continue Reading

Employer’s After-the-Fact Discovery of Lack of Job Qualification Sinks Employee’s ADA Discrimination Claim (US)

Sunny Anthony worked for TRAX International as a technical writer.  During the course of her employment, she asked TRAX to accommodate her disabilities–post-traumatic stress disorder and related anxiety and depression—by letting her work from home, which TRAX denied or otherwise declined to allow.[1]   So Ms. Anthony sued TRAX, alleging that it violated the Americans with … Continue Reading

Arbitration Agreements Lacking Employer’s Signature Can Be Enforceable, Says Texas Appellate Court (US)

On April 16, 2020, a three-judge panel of the Court of Appeals for the First District Court of Texas held that an employer could compel a former employee to arbitrate her wrongful termination case, even though it had not signed the arbitration agreement, because the evidence demonstrated that the employer intended to be bound by … Continue Reading

Early guidance for administrators considering furlough (UK)

Earlier this week, Mr Justice Snowden gave the first judgment on the Government’s Coronavirus Job Retention Scheme [here].  Rather than bask in the Bank Holiday sunshine digging into his Easter eggs, he sought to bring clarity to some of the more murky aspects of the scheme – specifically, how the Scheme operates when the employer … Continue Reading

Next steps in vicarious liability – no liability for employee’s personal vendetta (UK)

Back in 2016 we commented on the increasing breadth of the vicarious liability concept as seen in a claim against supermarket chain Morrisons [here].  The store was held liable to a customer who was violently assaulted by one of its petrol station attendants in direct contravention of the criminal law, his training and all reasonable … Continue Reading

NLRB Holds Provisions in Voluntary Severance Agreement Are Not Unlawful “Work Rules” (US)

In non-coronavirus related developments, on March 16, 2020, the National Labor Relations Board (NLRB or Board) issued a decision in Baylor University Medical Center, reversing an Administrative Law Judge (ALJ) decision that found certain severance agreement provisions to be unlawful under Section 8(a)(1) of the National Labor Relations Act (NLRA).  Section 8(a)(1) prohibits employers from … Continue Reading

Sixth Circuit Issues ADA Work-from-Home Decision, Right Before We All Start Working from Home (US)

Our colleague Justin DiCharia at Squire Patton Boggs’  Sixth Circuit Appellate Blog recently discussed the Sixth Circuit’s decision in a case involving an employee’s request to work from home as a disability accommodation under the Americans with Disabilities Act.  As Justin notes below, this decision came prior to the recent COVID-19 pandemic and the massive … Continue Reading

Dismissing to protect corporate reputation – how to keep your good name in the Tribunal (UK)

If one of your employees is arrested and charged with something more than usually distressing and distasteful, the question will inevitably come up of whether he can be dismissed. The driver for that inquiry will often be a fear on the employer’s part of adverse publicity arising from its continued employment of him against that … Continue Reading

Fifth Circuit: Obese Employee Not Disabled Under the ADA (US)

As discussed in our prior posts on obesity and disability law, there is continuing disagreement in the courts concerning whether obesity alone constitutes a disability, or whether obesity must result from a physical disease or condition in order to be a disability.  On February 27, 2020, the U.S. Court of Appeals for the Fifth Circuit … Continue Reading

Inability To Perform A Specific Job Is Not A Substantial Impairment On Ability To Work, Says Second Circuit In ADA Case (US)

In Woolf v. Strada, decided by the U.S. Court of Appeals for the Second Circuit in February 2020, the court considered whether the plaintiff’s inability to perform his particular job as a result of migraines and stress arising from the circumstances surrounding his job gave rise to a qualifying disability under the Americans with Disabilities … Continue Reading

A little knowledge is a dangerous thing – or when ignorance is not bliss (UK)

Here’s a question. Employee Mr U is accused of sexually assaulting A. She goes to the Police about it and simultaneously U’s employer starts an investigation into his conduct. The investigator J concludes that there is a case to answer, based in part on A having gone to the Police. On the back of J’s … Continue Reading

Update: Obesity as a Disability in the Ninth Circuit (US)

As we previously reported here, the U.S. Court of Appeals for the Ninth Circuit and the Washington Supreme Court have been wrestling with whether obesity qualifies as a disability under the Washington Law Against Discrimination (“WLAD”). The dispute involves an applicant for a position with a railway company who sued in 2010, alleging that the … Continue Reading

NLRB Releases Multiple Advice Memoranda Covering a Range of Hot Button Topics (US)

Memos provide guidance on a variety of topics, including employer confidentiality policies and arbitration agreements As you may recall from our previous blog posts, National Labor Relations Board (“NLRB” or “Board”) advice memoranda are issued by the agency’s Division of Advice, which is part of the NLRB’s Office of the General Counsel (the “General Counsel”).  … Continue Reading

Spoiler Alert! It’s Going to Be a Roaring 2020 With Many Impactful Laws On The Horizon (US)

Who will be cheering and who will be jeering in this new decade may depend on the outcome of several key cases, pending regulations, and potential state and local law reforms. Below, we provide you with a brief overview of some key issues that may dominate the legal landscape in 2020 and beyond.… Continue Reading

NLRB Must Consider An Employer’s Obligation To Maintain A Harassment-Free Workplace When Evaluating An Employee’s Allegedly Protected Conduct (US)

The U.S. Court of Appeals for the D.C. Circuit recently refused to enforce a decision by the National Labor Relations Board (NLRB) that involved a conflict between an employer’s obligation to maintain a harassment-free workplace under federal and state equal employment opportunity laws (such as Title VII of the Civil Rights Act of 1964 which, … Continue Reading

Veganism as a protected belief – putting flesh on the bones for UK employers

Much noise in the press last week about the decision of the Norwich Employment Tribunal that veganism is a philosophical belief protected under The Equality Act, so the obvious question is what this all means in practice. First, less than it looks.  The decision applies to “ethical veganism” only, not a regime adopted on fashion … Continue Reading

Genetic Mutation Is Not A Disability under the ADA, Says Ohio Federal Court (US)

In Darby v. Childvine, a recent decision from the United States District Court for the Southern District of Ohio, the Court considered whether a genetic mutation can constitute a “disability” as that term is defined under the federal Americans with Disabilities Act (“ADA”). In that case, the employer terminated the plaintiff/then-employee Sherryl Darby two weeks … Continue Reading

Title VII Pay Bias Claims Do Not Require Evidence of Unequal Pay for Equal Work (US)

On December 6, 2019, a three-judge panel of the U.S. Court of Appeals for the Second Circuit (which hears appeals from federal district courts located in Connecticut, New York, and Vermont) unanimously held that employees can allege gender-based pay discrimination under Title VII of the Civil Rights Act even if they cannot show that a … Continue Reading

NLRB’s LA Specialty Produce Decision Provides More Clarity on Employee Handbook Rule Standards (US)

On October 10, 2019, the National Labor Relations Board’s (“NLRB” or “Board”) decision in LA Specialty Produce Company provided some employer-friendly clarification of its standard for assessing the lawfulness of employee handbook provisions under the National Labor Relations Act (“NLRA”), and in doing so, categorized two specific types of policies as generally lawful.  In this … Continue Reading
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