Recent Developments

Beginning in 2012 the Forum began summarizing recent developments in administrative regulations and decisions that concern the workplace. Below are the most recent submissions. For a complete listing, please visit:

Human Resource Directors Can be Viewed as Employers and Found Individually Liable under the FMLA

On March 17, 2016, the United States Court of Appeals, Second Circuit decided a Family and Medical Leave Act (FMLA) case of first impression. The Culinary Institute of America (CIA) fired Cathleen Graziadio after she took leave to care for her two children for medical reasons. After a series of emails with the Director of Human Resources, Graziadio brought suit against CIA and the Director of Human Resources for interference with FMLA leave and FMLA retaliation. The Second Circuit held that if an individual is considered an employer, as defined in the Fair Labor and Standards Act (FLSA), then that individual could be held liable under the FMLA. The Court used the FLSA economic-reality test and applied it to the FMLA to determine individual liability. The economic-reality test requires the Court to look at four factors: (1) whether the alleged employer had the power to hire and fire the employees, (2) whether the alleged employer supervised and controlled employee work schedules or conditions of employment, (3) whether the alleged employer determined the rate and method of payment, and (4) whether the alleged employer maintained employment records. After looking at all four factors, under the totality of the circumstances, the Court determined that a jury could find CIA’s Director of Human Services individually liable under the FMLA. Human resources personnel should be aware that courts could consider them employers and thus hold them individually liable if they exercise enough authority in FMLA decisions and matters.

Graziadio v. Culinary Inst. of America, No. 15-888-cv, 2016 WL 1055742, at *1-*6 (2d Cir. Mar. 17, 2016).

By: Antonia Bird


On January 15, 2016, the FLRA (Federal Labor Relations Authority) denied a motion for reconsideration from the PBGC (Pension Benefit Guarantee Corporation) based on 5 C.F.R. § 2429.17 in a dispute involving the PBGC and a PBGC employee who was a member of the NAGE (National Association of Government Employees). In a series of previous decisions the FLRA agreed with most of the assessments made by the arbitrator in the dispute, striking down PBGC exceptions to the decision. The grievant had an argument with a supervisor that she reported to PBGC management as an alleged violation of Title VII of the Civil Rights Act of 1964. The arbitrator held that because certain Agency officials felt animosity toward the grievant as the result of her prior testimony in an equal employment-opportunity (EEO) dispute, the PBGC failed to properly investigate the complaint. The arbitrator found that the Agency’s failure to properly investigate the grievant’s complaint constituted unlawful retaliation under Title VII, and he awarded her compensatory damages. A party seeking reconsideration of an FLRA decision bears the heavy burden of establishing that extraordinary circumstances exist to justify the action. Errors in its remedial order, process, conclusions of law, or factual findings may justify granting reconsideration. No consideration is given to claims raised for the first time in a motion for reconsideration.

By: Alex Morgan

PBGC III, 69 F.L.R.A. 164 (2016). See also PBGC I, 64 F.L.R.A. 692 (2010); PBGC II, 68 F.L.R.A. 916; 42 U.S.C. §§ 2000e to 2000e-17; 5 C.F.R. § 2429.17.


Katy-Area Shipley’s Donuts Franchise Pays $45,000 To Settle EEOC Pregnancy Discrimination Suit

Brooke S. Foley was forced to take unpaid leave and eventually fired when her employer, Shipley’s Donuts of Katy, TX, learned that she was pregnant. Shipley’s demanded that she obtain a doctor’s note stating her pregnancy was not “high risk.” The suit was filed on her behalf by EEOC in the Federal District Court for the Southern District of Texas. The complaint alleged discrimination under Title VII of the Civil Rights Act of 1964, amended by the Pregnancy Discrimination Act. The Acts prohibit employers from requiring pregnant employees to provide medical information proving that they are fit to work unless the employee requests a pregnancy related accommodation. The law also prohibits employers from retaliating against employees who complain against such discrimination. In the consent decree signed by Judge Alfred H. Bennet, the court awarded Foley $45,000 in monetary damages and imposed injunctions on Shipley’s. The company has to implement various anti-discrimination policies including creating a formal complaint process for employees experiencing discrimination, providing training to all employees, including managers and owners, on its

anti-discrimination policies, and periodically reporting their compliance to EEOC. Foley’s lawyers lauded this decision, which affirms that a pregnant woman, not her employer, is the only one with the power to decide whether she continues to work during her pregnancy.

By: Sonja Balic


NLRB Declines to Assert Jurisdiction over Northwestern University’s Football Players

The College Athletes Players Association requested the Board to find that Northwestern University’s football players who receive grant-in-aid scholarships are employees within the meaning of Section 2(3) of the National Labor Relations Act. The Board used its discretionary power to decline jurisdiction over college football or college athletics because doing so would not serve to promote stability in labor relations. The Board contemplated that the petition presented a unique situation, different from previous cases involving professional sports, in which the Board was able to regulate all, or at least most, of the teams in the relevant league or association. In the present case, the Board would not be able to assert jurisdiction over a majority of Northwestern’s competition, since all but 17 out of the roughly 125 colleges and universities that participate in NCAA Division I Football Bowl Subdivision (FBS) football, are state-run institutions. This decision was also made in light of the interconnectedness of the the NCAA, the Big Ten, and the other member institutions. Nevertheless, the Board asserted that its decision today is limited to Northwestern football players and does not concern other individuals associated with FBS football. Therefore, the Board may be able to revisit this jurisdiction issue another day.

By: Huyen Le

Northwestern University, 362 NLRB No. 167, slip op. at 1 (Aug. 14, 2015).


Jury Awards $240,000 to Muslim Truck Drivers In EEOC Religious Discrimination Suit

In 2009, a trucking company, Star Transport, fired two of its drivers after they refused to transport alcohol.  Mahad Abass Mohamed and Abdkiarim Hassan Bulshale, two Somalian-American Muslims claimed that transporting the alcohol violated their religious beliefs.  The Equal Employment Opportunity Commission (EEOC) alleged that Star Transport failed to accommodate the truckers’ religious beliefs pursuant to Title VII of the Civil Rights Act of 1964.  Star Transport didn’t provide their human resources department with the proper discrimination training, causing the unfair treatment and discrimination to these two employees. The EEOC filed its initial complaint in May 2013.  In March 2015, Start Transport admitted liability and a trial took place to determine compensatory and punitive damages as well as back pay. The case was heard before Chief Judge James E. Shadid of the U.S. District Court for the Central District of Illinois.  The jury awarded each trucker $20,000 in compensatory damages, $100,000 in punitive damages and approximately $1,500 in back pay. This verdict shows that all employers that all employees have the right to equal treatment in their workplace without having to sacrifice their religious beliefs, it also hold employers accountable for receiving the proper training so they don’t alienate their employees.

By: Soraya Mohamed



EEOC Issues Guidance on Criminal Background Checks

The EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 in April of 2012, in light of significant recent rulings against employers related to criminal background checks. The guidance does not prohibit criminal background checks, but rather it requires a practice of “individualized assessment” in order for the employer to establish that they are not engaging in discriminatory behavior. “Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.” The EEOC recommends to employers who consider criminal record information to develop a narrowly tailored policy and procedure for screening applicants and employees for criminal conduct. The policy should identify essential job requirements and the actual circumstances under which the jobs are performed; it should also determine the specific offenses that may demonstrate unfitness for performing such jobs, and define the duration of exclusions for criminal conduct.

EEOC Enforcement Guidance. Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (April 25, 2012), available at See also Hopkins & Carley, LLC, 2013 Employment Law Update: A Review of Recent Developments of Interest to Employers, 19–21(2014), available at

(Development authored By Elan Cameron)


Weeks v. 735 Putnam Pike Operation

The Supreme Court of Rhode Island held that the language in the collective bargaining agreement between the defendant employer and the plaintiff’s union was insufficiently explicit to preclude the plaintiff from seeking redress in a judicial, rather than arbitral, forum. In this case, the plaintiff appealed a superior court’s order to submit to arbitration as indicated by the collective bargaining agreement because she claimed that she had not waived her right to litigate specific statutory state law claims. The Supreme Court of Rhode Island relied on Alexander v. Gardner-Denver and Wright v. Universal Maritime Service Corporation to determine that plaintiffs must only arbitrate those issues that are reflected in their contract; plaintiffs do not waive their right to litigate issues that are not covered in sufficiently specific language. The Court held that in this case, since the Rhode Island statutes were not mentioned in the collective bargaining agreement, the plaintiff was not obligated to arbitrate them, but could proceed in court.

Weeks v. 735 Putnam Pike Operation, 2014 WL 800466 (Feb. 28, 2014). See Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974); Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998).

(Development authored by Joanna Solloway)


Treaty Obligations Without Ratification? The Maritime Labour Convention Enters into Force

The Maritime Labour Convention, 2006 (MLC), known as the “seafarers’ bill of rights,” entered into force August 20, 2013. The United States has not ratified the MLC, but will still have to apply the MLC requirements, through the “no more favourable treatment clause,” to ships flagged in ratifying countries and comply with the 14 minimum requirements set by the MLC when calling ports of ratifying countries. In August 2013 the U.S Coast Guard, as the organization tasked with the Obama Administration’s review of the MLC, released guidance for their policies and procedures regarding the inspection of U.S. vessels for voluntary compliance with the MLC. While the MLC is pending potential signature and ratification for the U.S., the Coast Guard is guiding the maritime industry to voluntarily comply such “to minimize difficulties that might be experienced when U.S. vessels call in foreign ports of nations party to MLC 2006.” This suggests that even without ratification, the U.S. is practically compelled to adhere to the provisions of an international instrument to which it is not a party.

International Labour Organization, Shipping industry sets sail under new standard, available at–en/index.htm; see International Labour Conference, Maritime Labour Convention, 2006, art. V, paragraph 7 February 23, 2006, U.N.T.S. Registration Number I-51299 (referencing what is referred to by the ILO as the “no more favourable treatment clause; see also International Labour Organization, International Labour Standards Department, Maritime Labour Convention, 2006 (MLC, 2006) Frequently Asked Question (FAQ), Third (revised) edition, at A4, 2014, available at—ed_norm/—normes/documents/publication/wcms_238010.pdf; U.S. Dep. of Homeland Sec., U.S. Coast Guard, Navigation and Vessel Inspection Circular (NVIC) NO. 02-13, Guidance Implementing the Maritime Labour Convention, 2006 (2013) available at!documentDetail;D=USCG-2012-1066-0034; Charles R. Lipcon, U.S. Implements Maritime Labour Convention, 2006, Cruise Ship Law Blog (May 23, 2013),

(Development authored by Phoebe Ramsey)


Burrage v. United States

Dicta in this criminal case concerning a heroin death questions the applicability of a penalty enhancement provision in the Controlled Substance Act; the dicta includes a section explicating on causation that Title VII retaliation claims must be proven by a “but-for” causation standard, therefore refining the holding in University of Texas Southwest Medical Center v. Nassar. Nassar abrogated and elevated the previous “motivating factor” standard required for retaliation claims, as articulated in Smith v. Xerox Corp. Burrage clarifies that “but-for” causation is not as high a bar as often considered, but a “minimum requirement for a finding of causation.” In reference to Nassar, the Court moderated the causation standard required for a Title VII retaliation claim, defining the causation standard as the “minimum concept of cause” articulated in Burrage.

Burrage v. United States, 134 S. Ct. 881 (2014); Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013); Smith v. Xerox Corp., 602 F.3d 320, 334 (5th Cir. 2010); Burrage, 134 S. Ct. at 888 (citing Model Penal Code § 2.03(1)(a), Explanatory Note (emphasis added); citing also United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010) (but for “is the minimum concept of cause”)).

(Development authored by Daniel Clark)


Du Daobin v. Cisco Sys.

Corporate liability in the aftermath of Kiobel v. Royal Dutch Petroleum Co. continues to be indefinite. Du Daobin filed action against Cisco in federal district court in Maryland, alleging the Golden Shield (a nationwide surveillance program) detected his circulation of Internet articles calling for fair treatment of rural farmers in China, after which he was subjected to forced labor, unlawful detention, and torture. Daobin’s claims were brought pursuant to the Alien Tort Statute (ATS), a particularly vague area of international law, which allows foreign plaintiffs with the sole means of obtaining jurisdiction in U.S. courts for alleged human rights abuses. The Supreme Court in Kiobel, relying solely on international law, held that ATS does not provide foreign plaintiffs relief against corporations. The Kiobel decision requires lower courts to consider international law in determining whether the defendant has committed a violation of international law; once a violation is established, domestic law provides the means for holding the defendant accountable. Before the district court in Maryland ever reached the consideration of Cisco’s international law violations, it dismissed Daobin’s claims because they were nonjusticiable due to the political question doctrine.

Du Daobin v. Cisco Sys., No. 11-1538, 2014 U.S. Dist. LEXIS 22632 (D. Md. Feb. 24, 2014); see also 28 U.S.C. § 1350; Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013); Mara Theophila, Note, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 Fordham L. Rev. 2859 (2011).

(Development authored by Christa Pitts)


Third Circuit Upholds New H-2B Prevailing Wage Calculations

Employers seeking foreign workers through the H-2B visa program will have a new prevailing wage determination pursuant to a 2011 regulation. Concerned employers brought suit against the Department of Labor (DOL) challenging the DOL’s authority to create and implement the rule, citing violations of the Administrative Procedure Act and the Regulatory Flexibility Act. The 2011 Wage Rule abandoned the previous methodology of calculating wages in favor of choosing the highest wage among a collective bargaining agreement, a rate under either the Davis-Bacon Act or McNamara-O’Hara Service Contract Act, or applicable Occupational Employment Statistics. The Third Circuit found the Department of Labor had not violated its authority to assist the Department of Homeland Security with labor certifications as notice of the rule and sufficient reasoning for the new methodology were provided to the public.

See 20 C.F.R. § 655.10; La. Forestry Ass’n v. Sec’y United States Dept. of Labor 2014 U.S. App. LEXIS 2617.

(Development authored by Samantha Serna)


“Student-athletes” or “Employees”: the Potential Unionization of Division I College Football.

College football players are currently regarded by the NCAA as “student-athletes” and at most Division I programs, they are given stipends and scholarships for their participation; however, the College Athletes Players Association (CAPA) would prefer for the football players to be regarded as “employees.” In a recent NLRB Chicago Regional Board hearing, CAPA argued that Division I college football players participate in a full-time, high revenue generating activity ($235 million for Northwestern between 2003-2012), without such things as health care or potential payment. However, Northwestern argues that the football players are students who choose to participate in intercollegiate athletics in addition to their educational endeavors and nothing more. The NLRB Chief’s decision to find college football players “employees” could lead to the potential overhaul of the NCAA, as current rules such as a ban on compensation for student athletes and current transfer rules, would be viewed as unfair. The NLRB Chicago Region decision has created much fanfare and Northwestern has vowed to appeal to the National Labor Relations Board in Washington.

Northwestern University, N.L.R.B. No. 13-RC-121359 (2014); Alejandra Cancino, Northwestern, CAPA file closing arguments with NLRB, (March 19, 2014),,0,2341913.story; see Dennis Dodd, N’Western union would not bargain for ‘things prohibited by NCAA’, (March 18, 2014, 4:04 P.M.),; see Alejandra Cancino, Northwestern football union hearings continue, (February 19, 2014),; see also Michael Bird, How the college football union could end the NCAA’s dumbest rule, (March 5, 2014, 9:00 A.M.),

(Development authored by John Leddy)


Laurus Technical Institute

According to the National Labor Relations Board, implementing a “no gossip policy” that prohibits employees from gossiping about their employer, other employees, or customers, and subsequently firing an employee for violating that policy, is a violation of the National Labor Relations Act (NLRA). Nine months after Laurus Technical Institute implemented a no gossip policy in its employee handbook in an attempt to curb a decrease in workplace productivity, it terminated one employee for unsatisfactory performance, stating that the employee had violated the company’s no gossip policy on numerous occasions. In December 2013, an ALJ held that the for-profit college’s no gossip policy violated Sections 7 and 8(1)(1) of the NLRA because it was overly broad, ambiguous, and severely restrictive as it allowed the discharge of an employee for engaging in protected concerted activity by prohibiting employees to speak to coworkers about terms of employment. While this ruling highlights protection of workers’ rights, it provides little guidance to employers on how to change employee regulations to comply with current law and on how it will rule in future cases.

Laurus Technical Institute, N.L.R.B. No. 10-CA-093934 (December 11, 2013); see Lutheran Heritage Village-Livonia, 343 N.L.R.B. 64620 (2004), (stating that explicitly restricting Section 7 activities is unlawful); see also SNE Enterprises, Inc., 347 N.L.R.B. 472, 492–493 (2006), enfd. 257 Fed. Appx. 642 (4th Cir. 2007) (establishing that an prohibiting employees from speaking to coworkers about discipline or other terms and conditions of employment violates Section 8(1)(a)).

(Development authored by Shauna Agan)


Sandifer v. U.S. Steel Corp.

Employees need not be compensated for donning and doffing protective gear they are required to wear by their employers. Petitioner and others filed a collective action under the Fair Labor Standards Act (FLSA) seeking backpay for time spent putting on and taking off pieces of protective gear that they assert respondent requires workers to wear because of hazards at its steel plants. The FLSA excludes “changing clothes” from the time for which unionized employees must be paid, unless negotiated otherwise. There is a provision in the collective bargaining agreement between U.S. Steel and the petitioners’ union that would make the time non-compensable, if valid under 29 U.S.C. § 203(o), which allows parties to collectively bargain over whether time spent changing clothes at the beginning or end of the workday must be compensated. The Court found that petitioners’ donning and doffing of the gear at issue qualifies as “changing clothes” within the meaning of 203(o) and thus need not be compensable under the FLSA absent a specific collective bargaining agreement provision.

Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014); see 29 U.S.C. § 203(o) (2014).

(Development authored by Andrea De Leon)



American Express Co. v. Italian Colors Restaurant

 Class action waivers in arbitration agreements are strictly enforceable under the Federal Arbitration Act (FAA), even in circumstances where an individual’s arbitration costs surpass the potential recovery. Due to the tremendous disparity in the costs of individual arbitration compared with minimal financial recovery, Italian Colors Restaurant and merchants filed a class action suit against American Express Co., challenging the arbitration clause in their contracts that denied the right for claims to be collectively arbitrated. The Court maintained the strictest adherence to the FAA, which defines arbitration as a matter of contract and ensures that arbitration clauses are enforceable, and decided that the class action waiver did not prevent Italian Colors Restaurant from obtaining remedies. With the goal to provide consistency in clear structure and predictability, the ruling reaffirmed the authority of the FAA and requires judges to strictly uphold arbitration agreements regardless of equity principles that are essential to contract law.

Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2306 (2013); Federal Arbitration Act, 9 U.S.C.A. § 2 (1947); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1742 (2011) (dictating the FAA’s enforcement of class arbitration waiver over the preclusion of such waivers under California statute).

(Development authored by Amy Chen)


Expanding the NFL’s Rooney Rule

In the recent wave of employment, no minority head coaches were hired by a National Football League (NFL) team, instead, many of the positions were filled by current coordinator positions.  The NFL’s Rooney Rule, established in 2003, requires NFL teams to interview minority candidates for head coach and front office positions.  The Rule was implemented to boost the presence of minority coaches and managers in the NFL.  The Fritz Pollard Alliance recently proposed an expansion of the rule to cover both offensive and defensive coordinator positions as well as assistant head coaching positions.  Expanding the rule will improve effectiveness as it will allow more minority candidates who are hired in coordinator positions to be considered for head coaching positions in the future.  However, NFL Commissioner Roger Goodell announced that the Rooney Rule will not be expanded, but rather the NFL will host a symposium “to help prepare candidates for interviews and to help expose them to future employers.”

Steve Wyche, ‘Rooney Rule’ will not be Extended to Coordinators, (March 20, 2013, 3:11 P.M.),; see Steve Wyche, Fritz Pollard Alliance Rooney Rule Needs to be Expanded, (Jan. 22, 2013),; see also Mike Freeman, Minority Candidates Shut Out in Wave of Coaching Hires, (Jan. 17, 2013),

(Development authored by Jennifer Riso)


Taylor v. Geitner

Workers who settle Title VII claims against the government cannot sue the government in federal court for breach of the settlement agreement. The plaintiff brought a claim against the federal government for breaching a settlement agreement arising out of the plaintiff’s Title VII claims against the government as her employer. In order to sue the government, Congress must clearly and unambiguously waive its sovereign immunity. The Court of Appeals for the 6th Circuit held that, while Congress has waived sovereign immunity for discrimination actions brought against the federal government, Congress did not waive sovereign immunity for suits to enforce the settlement agreements arising out of the original discrimination claims.

See Taylor v. Geithner, 703 F.3d 328 (2013); United States v. Sherwood, 312 U.S. 584, 586 (1941); Brown v. GSA, 425 U.S. 820, 832 (1976); see also Patrick Dorrian, “Federal Workers Cannot Sue Under Title VII for Breach of Settlement, Sixth Circuit Rules,” 40 Empl. Discrim. Rep. (BNA) 46 (Jan. 9, 2013).

(Development authored by Joanna Solloway)


Eller v. Nat’l Football League Players Ass’n

The National Football League Players Association (NFLPA) did not improperly interfere with the rights of National Football League (NFL) retirees under the Restatement of Torts, when it exclusively negotiated with the NFL about retirement issues. The NFLPA approved a ten-year settlement agreement with the NFL concerning pension, retirement, and disability benefits without consulting retired NFL players. Under the Restatement of Torts, wrongful interference with prospective contractual relations requires that the interference was both “intentional” and “improper.” The district court ruled that the NFLPA did not improperly interfere with the retiree’s prospective contractual relations because the NFLPA had no actual desire to effectuate interference and it did not have a reasonable expectation that the retired players possessed a prospective economic advantage in the negotiation process.

See Eller v. Nat’l Football League Players Ass’n, 872 F. Supp. 2d 823 (D. Minn. 2012); Restatement (Second) of Torts, § 766B (1979).

(Development authored by Mike Fallings)


Harris v. Bloom Energy Corporation

Workers who are brought from Mexico into the United States to work temporarily for a U.S. employer and paid in pesos rather than U.S. dollars, are protected by the Fair Labor Standards Act (FLSA) and require compensation no less than the minimum wage. Bloom Energy transported fourteen workers into the United States to work on power generators and paid them in pesos at a rate equal to $2.66/hour. The United States District Court for the Northern District of California found Bloom Energy in violation of Sections 6, 7, 11, 15(a)(2), and 15(a)(5) of the FLSA. The Court held that Bloom Energy was required to pay the workers at least minimum wage, compensate the workers for any overtime in excess of forty hours of work, and keep records of each worker’s earnings and hours. Finally, the Court required Bloom Energy to pay lost wages in excess of $30,000 plus an equal amount of liquidated damages to the workers, as well as $6,160 in civil penalties to the government.

Harris v. Bloom Energy Corp., No. 13-cv-00259-LHK (N.D. Cal. Jan. 30, 2013) (consent judgment and order) ; 29 U.S.C. § 201-19; see also U.S. Dep’t of Labor, “US Labor Department Investigation Reveals Silicon Valley Employer Significantly Underpaid Workers from Mexico: Judge Orders Bloom Energy Corp. to Pay Back Wages, Liquidated Damages and Penalties,” Release No. 13-0137-SAN (Feb. 4, 2013); Eric Kurhi and Brandon Bailey, “Exclusive: Whistleblower tells story of Bloom Energy workers paid in Pesos,” Mercury News (Feb. 7, 2013) available at

(Development authored by April Fuller)


Pitt v. Kmart Corp.

Employers utilizing background-screening services in their hiring practice must adhere to consent and notice procedures prescribed by the Fair Credit Reporting Act (FCRA). Before an applicant may be denied employment based on the findings of a background screening the employer must provide proper notice of the intent to search and obtain a written consent by the applicant. A class action lawsuit by past applicants and employees of the Kmart Corporation alleged the company’s willful failure to comply with disclosure and authorization requirements set forth in the FCRA. A federal judge in the Eastern District of Virginia granted preliminary approval for a $3 million settlement of the action. According to the FCRA, employers who engage in background screening practices of applicants cannot act without following reasonable procedures to ensure the fair treatment of applicants seeking their employ under subsections 2 and 3 of 15 U.S.C. § 1681(b).

See Pitt v. Kmart Corp., E.D. Va., No 3:11 – cv-00697, settlement preliminarily approved 2/4/13), available at; 15 U.S.C. § 1681(b)(2)-(3) (2006) (limiting the types of information employers may seek from individuals and the employer’s ability to share such information with third parties).

(Development authored by Jay Shannon)


Barsyl Supermarkets Inc.

Employers who refuse to furnish a Union with certain information that is necessary and relevant to the Union’s role as the exclusive collective-bargaining representative of the unit employees violate their duty to bargain collectively and in good faith with the Union. An employer must grant a Union’s written request for addresses, phone numbers and work schedules of all unit employees under Sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA). According to the NLRA, employers cannot interfere with the right of employees “to bargain collectively through representatives of their own choosing.” Since the requested information is necessary for the Union to accomplish its duty of exclusive representation, the Board found that the employer engaged in an unfair labor practice by withholding the requested information.

Barsyl Supermarkets Inc., 359 NLRB No. 65 (2013) NLRB Board Decisions, available at (last accessed Feb. 25, 2013); 29 U.S.C. § § 157, 158 (a) (2013).

(Development authored by Ezinwanyi Ukegbu)


Embry v. City of Calumet, Ill.

Government employees who serve in policymaking positions requiring political allegiance may be fired for their political affiliation. The plaintiff, who was Commissioner of Streets and Alleys for the defendant, was demoted from his position after several aldermen refused to ratify his appointment to a new department based on his failure to support their ally’s political campaign. According to the Elrod-Branti line of cases, the “government employer’s need for political allegiance . . . outweighs the employee’s freedom of expression” for government employees in policymaking positions. The Seventh Circuit held that Embry’s broad discretionary power to formulate city policies constituted policymaking, and that his demotion for failure to support certain aldermen in a previous election was proper.

Embry v. City of Calumet, 701 F.3d 231 (7th Cir. 2012); Bonds v. Milwaukee Cnty., 207 F.3d 969, 977 (7th Cir. 2000); Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); see also Susan Lorde Martin, A Decade of Branti Decisions: A Government Official’s Guide to Patronage Dismissals, 39 AM. U. L. REV. 11 (1989).

(Development authored by Jennifer Girard)


Dish Network Corp.

A social media policy constitutes an unfair labor practice where it restricts protected speech by broadly prohibiting “negative” employee speech online, restricts employee speech online during work hours (without indicating that protected speech could be exercised during breaks), and requires preclearance before employees could speak publicly or to government officials. The employer’s social media policy prohibited employees from making disparaging or defamatory comments about the employer during or outside of work hours, from engaging in negative electronic communication on company time, and from speaking to the media or government agencies electronically without prior approval from management. The NLRA prohibits employers from restricting employee speech protected under Section 7, including electronic speech, or from issuing policies that chill protected speech. Applying the NLRB’s ruling in Costco Wholesale Corp., an NLRB administrative judge invalidated an employer’s social media policy which restricted employees from making negative comments about the employer online, including during periods when employees were not working (such as work breaks or outside of the office).

Dish Network Corp., No. 16-CA-62433, 2012 WL 5564372 (N.L.R.B. Div. of Judges 2012); see, e.g., Knauz BMW, 358 NLRB 164 (2012) (“courtesy rule,” which prohibited “disrespectful” conduct and “language which injures the image or reputation of the Dealership” contravened Section 7); Costco Wholesale Corp., 358 N.L.R.B. 106 (2012) (“statements posted electronically . . . that damage the Company” were protected speech); 29 U.S.C. § 157.

(Development authored by Christy Wu)


Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assoc. Long Term Disability Plan

An insurance administrator acts arbitrarily and capriciously in violation of the Employment Insurance Retirement Security Act (ERISA)when he refuses to consider whether an employee’s risk of relapse into substance dependence swells to the level of a disability. An employer’s insurance company discontinued an employee’s disability benefits after she checked out of a rehabilitation facility where she lived while treating her opioid addition, although she remained under a doctor’s care after her discharge. According to D & H Therapy Associates, LLC v. Boston Mut. Life Ins. Co., the plan administrator’s determination must be reasoned and supported by substantial evidence. The Court of Appeals held that categorically excluding risk of relapse as a source of disability was unreasonable absent any language in the insurance plan that required such an exclusion.

Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assoc. Long Term Disability Plan, 705 F.3d 58 (1st Cir. 2013); D & H Therapy Associates, LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27, 35 (1st Cir. 2011); Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001–1461. See also Julie Beck, Risk of Relapse into Addiction Counts as Current Disability, INSIDE COUNSEL, March 26, 2013, available at; Ronald J. Kramer & James C. Goodfellow, First Circuit: Unwritten Risk of Relapse Exclusion is Unreasonable, Creates Split with Fourth Circuit, LEXOLOGY, Feb. 4, 2013, available at g=f66441a1-a6a4-496c-9356-12e30eafb803.

(Development authored by Nnenne Agbai)


Williams v. Dallas Independent School District

Employees need not make an express concern for the environment or public health when engaging in protected whistleblower activity under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Toxic Substances Control Act (TSCA). An employee was terminated allegedly in violation of protected whistleblower activity under CERCLA and TSCA, as a result of the employee’s request from the employer of environmental and safety information relating to employee’s workplace. An Administrative Law Judge (“ALJ”) granted the employer’s motion for summary judgment because the ALJ found that the employee made no express concern about the environment or public health when he engaged in the alleged protected activity; that the employee was instead motivated purely for his and his coworkers’ personal safety and health; and thus that the employee’s activity was not protected activity under CERCLA and TSCA. The Department of Labor (“DOL”) Administrative Review Board vacated the ALJ’s grant of summary judgment and held that, to survive the summary judgment stage, an employee need not make express concern about the environment or public health for whistleblower actions to be protected under CERCLA and TSCA, provided the actions touch on the concerns for the environment or public health and safety that are the focus of CERCLA or TSCA.

Williams v. Dall. Indep. Sch. Dist., ARB No. 12-024, ALJ No. 2008-TSC-1 (ARB Dec. 28, 2012); Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9610 (Thomson/West 2005); Toxic Substances Control Act (TSCA), 15 U.S.C.A. § 2622 (Thomson Reuters 2009); see also Melendez v. Exxon Chems. Americas, ARB No. 96-051, ALJ No. 1993-ERA-006, slip op. at 18 (ARB July 14, 2000).

(Development authored by Mark Soto)


Matter of 833 Central Owners Corp. and Local 621, United Workers of America

An employer’s use of implied benefits to an employee, coupled with the threat of discharge and reprisals in an effort to coerce him into refraining from union activity, violates the National Labor Relations Act (“the Act”). At an arbitration hearing between the union and employer, a new employee failed to testify on behalf of the employer and inadvertently gave the thumb’s up in support of the Union’s position. The employee’s conduct was viewed by the employer as pro-union and the employer began disciplining the employee, ultimately terminating his employment. The National Labor Relations Board (“the Board”) applied the analytical framework established in Wright Line and held that the employee’s conduct during the hearing was protected union activity that motivated the employer’s warnings, suspensions, and discharge in violation of the Act. In order to remedy the violation the Board ordered the employer to reinstate the employee to his previous job, or a substantially equivalent job, within 14 days and to compensate him for any loss of earnings resulting from his termination. A non-union employee’s participation in an arbitral hearing can be considered a protected union activity and reprisals stemming from such conduct violate the Act.

Matter of 833 Central Owners Corp. & Local 621, United Workers of America, 359 NLRB No. 66 (2013); Wright Line, 251 NLRB 1083 (1980), enf’d. 662 F.2d 899 (1st Cir. 1981); NLRA §§ 3, 8(a)(1).

(Development authored by John Marsella)


Vernace v. Port Authority

Employers cannot retaliate or discriminate against an employee who has filed a complaint with the Occupational Safety and Health Administration (OSHA) under the Federal Rail Safety Act of 1982 (FRSA). Laura Vernace filed a complaint with OSHA alleging that the Port Authority Trans-Hudson Corporation (PATH), her employer, retaliated against her by intimidating and threatening her after she filed an injury report. FRSA prohibits discrimination, which includes threatening discipline, against any employee who files an injury report. The Administrative Law Judge held, and the Administrative Review Board affirmed, that PATH did discriminate against Vernace by threatening disciplinary action as a result of her filing an injury report, and such discrimination violated FRSA.

Vernace v. Port Authority Trans-Hudson Corporation, 2010-FRS-018, Admin. Review Bd.’s Decision and Order (Dep’t of Labor Dec. 21, 2012); Federal Rail Safety Act, 39 U.S.C.A. § 20109 (2012).
See also Katz, “FRSA Whistleblower Provision Protects Against Threats, ARB Holds,” Marshall, & Banks, LLP, Corporate Whistleblower Blog (March 18, 2013) available at; James L. Curtis and Craig B. Simonsen, “Environmental Safety Update, OSHA Administrative Review Board Finds Railroad Whistleblower Violation,” Seyfarth Shaw, LLP (January 21, 2013) available at

(Development authored by Samantha Aster)


OUR Walmart Advice Memorandum

A union that is not seeking a recognitional or organizational objective is not violating section 8(b)(7)(C) of the National Labor Relations Act (“NLRA”), when it pickets a business in excess of the 30-day statutory limit. Walmart Stores, Inc. filed unfair labor practice charges against Making Change for Walmart and Organization United for Respect (“OUR”) Walmart, subsidiaries of the United Food & Commercial Workers (“UFCW”), for excessive picketing of its stores. Under the NLRA, any union picketing of an employer by a non-representative union must, within thirty-days, petition the NLRB for election or the picketing must cease. The Office of the General Counsel decided that since the union had disavowed any organizational or recognitional intent, promised to make public representations to this effect, and agreed to a 60-day break from picketing, their unfair labor practice would be held in abeyance, and assuming compliance with the Advice Memorandum, withdrawn. United Food and Commercial Workers International Union, 2013 WL 459631 (N.L.R.B.G.C.) (Administrative Memorandum) (Jan. 30, 2013); National Labor Relations Act, 29 U.S.C. § 158(b)(7)(C).

See also, NLRB Office of Public Affairs, NLRB charge alleging illegal picketing at Wal-Mart held in abeyance, NLRB (Jan. 31, 2013), available at; Labor Union to Ease Walmart Picketing, NY Times (Jan. 31, 2013), available at;

(Development authored by Nicholas Devyatkin)


Leeson v. Transamerica Disability Income Plan

Whether a litigant is a participant for purposes of Employment Retirement Income Security (“ERISA”) is a substantive element of their claim, not a prerequisite for subject matter jurisdiction.  After separating from an employer Petitioner Jack Leeson (“Leeson”), a former employee of Respondent Transamerica Corporation, filed an action under ERISA to challenge the termination of his long-term disability benefits.  On remand, Transamerica filed a motion to dismiss Leeson’s action for lack of subject matter jurisdiction on the ground that Leeson did not have statutory standing as a plan participant to file suit under ERISA.  In this appeal, Leeson argued that the district court erroneously relied on the court’s prior holding in Curtis v. Nevada Bonding Corp. Instead, Leeson argued that under a more recent decision that, under ERISA, a “dismissal for lack of statutory standing is properly viewed as a dismissal for failure to state a claim rather than a dismissal for lack of subject matter jurisdiction.”  Leeson therefore argued that because he alleged a colorable claim for benefits, the district court had subject matter jurisdiction to address the merits of his case on remand. The court agreed and noted that the Supreme Court has instructed, “when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as non-jurisdictional in character.”

See Leeson v. Transamerica Disability Income Plan, 671 F.3d 969 (2012); see also 29 U.S.C. § 1101, et seq; 29 U.S.C. § 502(c); Curtis v. Nevada Bonding Corp., 53 F.3d 1023, 1027 (9th Cir. 1995) (holding that a district court lacked jurisdiction to consider an ERISA claim where a former employee “had neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits”); Vaughn v. Bay Environmental Management, Inc., 567 F.3d 1021, 1024 (9th Cir. 2009); Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006); Day v. AT&T Disability Income Plan, 685 F.3d 848, 856 (9th Cir. 2012); Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083, 1090 (9th Cir. 2012).

(Development authored by Theodore H. Waggner)


The Memorial Hosp. of Salem County & Health Professionals & Allied Employees

A fairly elected labor organization is entitled to bargain with organizations or businesses on behalf of union employees regardless of the organization or business’s objections.  The Union won a representation election conducted at Salem Hospital and soon after requested bargaining with Respondent who refused to meet and bargain with them.  Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer to refuse to bargain with a certified representative of its employees. The National Labor Review Board held that specific informational requests made by the Union were relevant and necessary to its role as the bargaining representative for the employees.

See The Mem’l Hosp. of Salem County & Health Professionals & Allied Employees (Hpae), S 4-CA-073452, 2012 WL 4086847 (N.L.R.B. Div. of Judges Sept. 14, 2012); see also Ryder Distribution Res., Inc. & Communications Workers of Am., Local No. 3263, 302 NLRB 76, 90 (1991).

(Development authored by Basim Motiwala)


OSHA Procedures for the Handling of Retaliation Complaints under Section 219 of the Consumer Product Safety Improvement Act of 2008

This new rule from the Occupational Safety and Health Administration (OSHA) establishes the finalized procedures for the handling of retaliation complaints under Section 219 of the Consumer Product Safety Improvement Act (CPSIA) of 2008. OSHA responded to comments from The National Whistleblower Center (NWC), the Government Accountability Project (GAP), and Todd Miller requesting provision clarifications and a focus on creating an even playing field through filing retaliation complaints. Responses to the comments concluded in this ruling that establishes the final procedures for the handling of retaliation complaints under CPSIA, thereby including procedures and time frames for complaint investigations and subsequent judicial processes. Beyond some minor clarifications, OSHA revised the interim final rule to solidify a more expeditious investigation and hearing process for employees seeking protection from retaliation.

See Procedures for the Handling of Retaliation Complaints under Section 219 of the Consumer Product Safety Improvement Act of 2008, Final Rule, 77 Fed. Reg. 40494-40509, 40494 (July  10, 2012) (to be codified at 29 C.F.R. pt. 1983).

(Development authored by Lorna Lunney)


In Re New York Party Shuttle, LLC

Employer was found to have terminated an employee in violation of the National Labor Relations Act when the employee used email and social media to try and start a union. Pflantzer was fired after he contacted other employees about starting a union and posted on a closed facebook page for NYC Tour Guides and sent an email to old co-workers from another tour guide company with specific complaints about his employer. The email and the posts on facebook were protected speech because they discussed the efforts the employee made to create a union, why the union was needed, and that the right to unionize is protected. The fact that the employee used email and social media as the forum does not diminish the right to form a union. Additionally, the judge determined that the statements made by the employee were accurate and so the employer could not say it fired the employee for lying about the company.

See New York Party Shuttle, LLC, WL 417865 N.L.R.B. (2012); see also National Labor Relations Act §7, §8(a)(1)(3); C.S. Telecom, 336 NLRB 1193, fn. 3(2001); Acme Bus Corp., 320 NLRB 458, 479 (1995); Approved Electric Corp. 356 NLRB No. 45 (2010).

(Development authored by Heather Lothrop)


Advilda Loubriel v. Fondo Del Seguro Del Estado

The First Circuit held that the 90 day period to file a suit under 42 U.S.C. § 2000e-5(f) (1) begins when either the claimant or the claimant’s attorney receives an EEOC right-to-sue letter. In this case, the right-to-sue letter was issued on May 8th, 2008 but the plaintiff claimed that she did not receive it until September 10th, after the 90 days had passed. The court applied the rule that notice to her attorney was notice to her. The First Circuit held that because the EEOC sent a letter to both the plaintiff and the plaintiff’s attorney at the same time, and the plaintiff’s attorney was not claiming to have received the letter, that the plaintiff’s attorney’s notice, which the court assumed was timely, started the 90-day clock. The court’s ruling forces attorneys and clients to communicate much better because as soon as either receives a right-to-sue letter, the clock begins.

See Advilda Loubriel v. Fondo Del Seguro Del Estado No. 11-1555, 2012 1st Cir  WL 4239812 (1st Cir. Sept. 21, 2012); see also Irwin v. Dep’t of Veteran’s Affairs, 498 U.S. 89, 92-93 (1990); 3 Emp. Discrim. Coord. Analysis of Federal Law § 111:2; 3 Emp. Discrim. Coord. Analysis of Federal Law § 111:29.

(Development authored by Ryan Hatley)


Omar v. Al Masar Transp. Co.

Although Section 9(b) of the Longshore and Harbor Workers’ Compensation Act provides for death benefits for the widow of a decedent, it does so only in cases where the widow was living with, dependent upon, or separated from the decedent for a justifiable cause or by reason of desertion at the time of his death.  The decedent, a Jordanian national, married his first wife in an Islamic ceremony in Palestine, had four children with her, and then relocated to California, where he subsequently married two other women without having divorced the first wife.  Without reaching the legality of the first marriage at the time of the decedent’s death, the Administrative Appeals Judge found that the first wife was not eligible for death benefits under the Act because she had not been living with nor dependent upon the decedent for many years, and because she did not submit evidence that she had continued to live in Palestine as his “deserted spouse” after he moved to the United States.

Omar v. Al Masar Transp. Co., No. 11-0809, 2012 WL 2520756 (Ben. Rev. Bd. June 14, 2012); see also 33 U.S.C. § 902 (16) (2006).

(Development authored by Sara Harlow)


George v. Junior Achievement of Ctr. Ind., Inc

The Court interpreted the term “inquiry” in Section 510 of ERISA broadly to include an informal interchange of questions from an employee to an employer. Here, the Plaintiff had notified his employer that it had breached its fiduciary duty by failing to deposit his withdrawn money into his retirement account; the employer responded by depositing the monies, and later firing the Plaintiff when he drew down the same account. Section 510 of ERISA prohibits retaliation “against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this [Act].”  The Plaintiff’s notification to his employer of the potential breach of its fiduciary duties, his questions, and their responses, constituted an inquiry under Section 510 of ERISA because his employer responded to the questions, and then acted adversely, by firing the Plaintiff, after the responses were given.

See George v. Junior Achievement of Cent. Ind., Inc., No. 11-3291, 2012 U.S. App. LEXIS 18571 (7th Cir. Sept. 4, 2012), vacated, 2011 U.S. Dist. LEXIS 111846 (S.D. Ind. Sept. 28, 2011); see also 29 U.S.C. § 1140.

(Development authored by April Fuller)


National Football League Players Association v. National Football League

Article 14, Section 1 of the Collective Bargaining Agreement (CBA) between the National Football League (NFL) and the National Football League Players Association (NFLPA) does not apply to players providing or offering to provide financial incentives to injure opponents.  In this case, the NFL Commissioner suspended four New Orleans Saints players for allegedly receiving monetary rewards from a player-funded pool when in-game opponents were injured.  The NFLPA challenged the authority of the Commissioner to impose this discipline and demanded arbitration pursuant to Article 14, Section 1 of the CBA, which mandates arbitration for any alleged undisclosed agreements concerning player compensation.  The arbitrator found that it lacked jurisdiction because Article 14, Section 1 does not extend to agreements among players to reward on-field conduct but only applies to undisclosed compensation agreements between players and Club personnel.

See NFL Players Ass’n v. NFL (June 4, 2012),; see also NFL Collective Bargaining Agreement, Art. 14 § 1 (stating that “A Club and a player may not, at any time, enter into undisclosed agreements of any kind”).

(Development authored by Mike Fallings)


U.S. Dep’t of Labor v. Camo Technologies, Inc.

An employer willfully fails to comply with and substantially violates the Immigration and Nationality Act when it receives communication of the notice-posting requirements and fails to notify United States workers at each place where an H-1B nonimmigrant will be employed that it seeks to hire nonimmigrant workers.  Camo Technologies, Inc. (CTI) participated in the H-1B nonimmigrant program authorizing the employment of qualified individuals who are otherwise unable to work in the U.S., and received an explanation of the notice-posting requirements from a Wage and Hour Investigator on numerous occasions, specifying that workers “at the place of employment” should be able “to easily read or see the notice.”  Nevertheless, CTI did not post notice at sites where it sent nonimmigrant workers.  An employer must provide notice to U.S. workers 30 days before it files a Labor Condition Application indicating that it seeks to hire nonimmigrants.  Notice should be posted at each place where any H-1B nonimmigrant will be employed.  The Administrative Review Board held that CTI willfully violated the INA’s H-1B notice-posting requirement because it knowingly failed to meet the notice-posting requirements when it did not post at the places of employment despite communication of the requirements and was thus subject to civil money penalties and referral for debarment.

See U.S. Dep’t of Labor v. Camo Technologies, Inc., ARB Case No. 11-026, 2012 WL 3876172 (Dep’t of Labor Aug. 31, 2012); see also H-1B Program, U.S. Dep’t of Labor Wage and Hour Div.,

(Development authored by Angela Bouliakis)


Peter J. Vandermeer v. Lincoln Hockey, LLC

When an individual suffers from permanent partial disability due to a work injury, he will be given compensation pursuant to a reasonable percentage determination of permanent partial disability. Vandermeer claimed thirty-six percent permanent partial disability after he fractured his leg during a hockey game with the Hershey Bears when an opposing player “body checked” him while his ice skate was caught in a crack in the ice.  According to the D.C. code, the claimant must prove the nature and extent of disability by a preponderance of the evidence and the ALJ may consider a claimant’s “pain, weakness, atrophy, loss of endurance, and loss of function.” The court held that Vandermeer has a five percent permanent partial disability due to pain, five percent due to loss of endurance, and five percent due to testimony that personal activities in his daily life have been impacted by his work injury.

See Peter J. Vandermeer v. Lincoln Hockey, LLC, 2012 WL 3991658 (D.C. Emp’t Servs. 2012); see also D.C. Code § 32-1508(3).

(Development authored by Jennifer Riso)


Nat’l Air Traffic Controllers Assoc. AFL-CIO

A Union acts in bad faith against union members when the union discriminatorily and retroactively applies a new seniority policy that punishes certain bargaining unit employees.  On the day which the Federal Aviation Administration’s new work rules were to be implemented against the NATCA’s wishes, the NATCA applied an amendment to its national constitution, whereby any employee who left a NATCA bargaining-unit position and then worked for the Federal Aviation Administration in “a supervisor/management job” would lose all previously acquired bargaining-unit seniority, affecting any bargaining unit members who had ever helped the FAA in a management or supervisory role.  A labor union has a duty to represent all employees in the unit it represents without discrimination and without regard to labor organization membership, and to “serve the interests of all members [of a bargaining unit] without hostility or discrimination toward any, to exercise discretion with complete good faith and honesty, and to avoid arbitrary conduct.” The Administration upheld the Judge’s ruling that the retroactive application of the amendment was in bad faith because it discriminatorily targeted only certain employees and because the application was retroactive, meaning that employees did not realize that they would be penalized when they left their bargaining unit positions. This ruling is likely to limit union discretion to establish union seniority measures in certain circumstances.

See Nat’l Air Traffic Controllers Assoc. AFL-CIO, 66 F.L.R.A. 467, 473 (2012); see also 5 U.S.C. § 7114(a)(1); Vaca v. Sipes, 386 U.S. 171, 177 (1967); See NTEU v. FLRA, 800 F.2d at 1171 (duty of fair representation recognized for unions in the private sector; accord, e.g., AFGE, Local 1857, AFL-CIO, 46 FLRA 904, 910 (1992).

(Development authored by Christy Wu)


Flaum Appetizing Corp. and Local 460/640, Industrial Workers of the World

Employers may not terminate employees for attempting to organize, even if the employer believe that the employees are undocumented workers. In early 2009, the Flaum Appetizing Corporation terminated seventeen employees and refused to pay back wages, citing the employees’ undocumented status.  The Board held that while Flaum may not be responsible for back pay should it provide evidence that the employees were in fact undocumented. Flaum here failed to provide any such proof, and as a result, it must compensate its former employees for services rendered and activity protected under the National Labor Relations Act.

See Flaum Appetizing Corp., 357 NLRB 162 (2011); see also Merchant’s Bldg. Maintenance, 358 N.L.R.B. 67 (2012) at *5 n.10 (holding that employer could only raise affirmative defense that employees lacked work status with a reasonable basis for the affirmative defense); see also N.L.R.B. Gen. Couns. Mem. OM 12-55 (May 4, 2012) (as a result of Flaum, the N.L.R.B. will no longer consider an employment reinstatement offer valid if it is conditioned on verification of employment status and regional offices “may consider” whether an employer charged in an unfair labor practice proceeding has violated Section 8(a)(1) of the N.L.R.A. by subpoenaing an employee’s work authorization documents as a harassing tactic). 357 NLRB 162 (2011) at *12.

(Development authored by Josh Tucker)


Michael Kohner v. Lahood, Secretary, Department of Transportation, Agency

Upon review of the Agency’s efforts to provide disabled Federal Aviation Administration (FAA) employee Michael Kohner with reasonable accommodation as required under the Rehabilitation Act of 1973, the EEOC upheld summary dismissal of Kohner’s discrimination claim because Kohner’s case did not present a genuine issue of material fact. Kohner, a seasoned employee of the FAA, requested reasonable accommodation after suffering a spinal injury that left him confined to a wheel chair and unable to walk.  The Agency, as required by the Rehab Act, accommodated Kohner until Kohner made additional accommodation requests but failed to provide required medical documentation in support of these requests.  Kohner filed a formal Equal Employment Opportunity complaint for discrimination and requested a hearing before an administrative judge.  After reviewing the facts of the case, the Administrative Judge decided to summarily dismiss Kohner’s case.  Administrative Judges are permitted to summarily issue decisions without granting a hearing if he or she determines that there is no genuine issue of material fact.  Thus, looking to the Agency record regarding Kohner’s accommodation process, the Commission determined that the Administrative Judge was correct in issuing summary judgment because Kohner did not present any evidence that would lead a reasonable fact-finder to conclude that the Agency discriminated against him by failing to provide reasonable accommodations.  The Rehab Act requires Agencies to engage in the interactive process, however, the requesting employee must also engage in the process and cooperate with the Agency.  The Agency did not violate the Rehab Act when it denied Kohner reasonable accommodation as a result of his refusing to provide the medical documentation required in support of his request.

See Michael Kohner v. Lahood, Secretary, Department of Transportation, Agency, EEOC DOC 0120110334 (E.E.O.C.), 2012 WL 4320966 (September 14, 2012); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (holding that summary judgment is appropriate where there exists no genuine issue of material fact); 29 C.F.R. § 1614.109(g); Celotex v. Catrett, 477 U.S. 317, 322-23 (1986) (defining a fact as genuine if a reasonable fact finder could find in favor of the non-moving party); Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., (Rehab Act).

(Development authored by Ashley Tease)


Macy v. Holder

Transgender people are covered by a federal prohibition on sex-based employment discrimination under Title VII of the Civil Rights Act of 1964.  Mia Macy presented herself as a man when she was offered a job as a ballistics investigator upon a satisfactory background check, but the lab director revoked the offer several days after Macy informed him that she was transitioning to a female.  The EEOC relied on congressional intent as well as Supreme Court and lower federal court decisions to interpret Title VII’s use of the term “sex” to include both the biological differences between men and women as well as gender.  The EECO held that intentional discrimination against a transgender individual because that person is transgender is discrimination based on sex in violation of Title VII.

See Macy v. Holder, EEOC DOC 0120120821, 2012 WL 1435995 (E.E.O.C.); see also 42 U.S.C. § 2000e et seq. See e.g. Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989).

(Development authored by Joanna Solloway)


Sutter East Bay Hospitals v. N.L.R.B.

Where an employee is disciplined for misconduct purportedly unrelated to protected union activity, the employee must show that there was an improper motivation for the discipline and that the employer would not have taken the same action without the improper motivation.  A hospital employee was suspended and ultimately fired for alleged misconduct connected with her efforts to promote the certification of a new union in the hospital’s cafeteria.  The Wright Line test applies to discipline that is purportedly unrelated to a protected activity, while the Burnup test applies to discipline that occurs in the course of a protected activity.  The D.C. Circuit Court of Appeals held that the lower court misapplied the Wright Line test by determining whether or not the employee had engaged in misconduct rather than that the employer had improper motivations for the disciplinary action.

See Sutter E. Bay Hosps. v. NLRB, 687 F.3d 424 (D.C. Cir. 2012); see e.g., Shamrock Foods Co. v. NLRB, 346 F.3d 1130,1135 (D.C. Cir. 2003); see also 12 Emp. Coord. Labor Relations § 52:44; 10 Emp. Coord. Labor Relations § 26:188; NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981); NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964).

(Development authored by Allison Pearson)


Madison Teachers, Inc. v. Scott Walker

Sections of the 2011 Wisconsin Act 10 that restrict collective bargaining rights of municipal employees and impose burdensome requirements on unions, are unconstitutional in that they violate free speech and freedom of association. Madison Teachers, Inc. and the Public Employees Local 61 sued Governor Scott Walker and three commissioners of the Wisconsin Employment Relations Commission claiming several sections of the 2011 Wisconsin Act 10 were unconstitutional. When the government confers a benefit, such as the right to collectively bargain to municipal employees, it cannot make it a condition that a person surrender or restrict their constitutional rights in order to receive that benefit. The Court found that the state of Wisconsin, in enacting those sections of 2011 Wisconsin Act 10, imposed burdensome and significant restrictions on employees who chose to join a union thereby violating their constitutional rights to free speech and association. See Madison Teachers, Inc. v. Scott Walker, No. 11CV3774, 2012 WL 4041495, (Wis. Cir. September 14, 2012); see also Lawson v. Hous. Auth. of City of Milwaukee, 270 Wis. 269, 278, 70 N.W.2d 605, 610 (1955); Andrew Harris & Esme E. Duprez, Wisconsin Law Limited Public Worker Unions Struck Down,, Sept. 12, 2012,; Sean Sullivan, Wis. Judge Strikes Down Law Curbing Collective Bargaining for Public Workers, The Fix (Sept. 14, 2012, 7:36 PM),

(Development authored by Emily Pantoja)


Banner Estrella Medical Center

Employers who issue broad and routine instructions prohibiting employees from discussing internal investigations need to demonstrate that confidentiality is necessary to further a legitimate business interest, otherwise, the employer could be found to be in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”).  Banner Health System routinely instructed employees involved in internal investigations to remain silent about the investigation.  The NLRB, in a 2-1 decision, found that the statement “viewed in context, had a reasonable tendency to coerce employees, and so constituted an unlawful restraint on Section 7 rights.”  The Board rejected a blanket concern for the integrity of the investigation and instead held that the employer had the burden “to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.”  NLRB member Hayes dissented on the basis that the instruction given was merely a suggestion rather than a rule prohibiting discussion.

 See Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012).

(Development authored by Carter Meader)


Dresser-Rand Co. & Iue-Cwa, Afl-Cio, Local 313

An employer’s decision to lock out striking and crossover workers, while allowing full-time replacement employees to work, can be found to have a discriminatory purpose in violation of the National Labor Relations Act. While an employer and union were negotiating a successor collective bargaining agreement, the union went on strike, and when it offered to return to work, the employer instituted a lockout while keeping permanent replacement employees working. The National Labor Relations Board looked at the entire circumstances surrounding the lockout, including the eventual preferential recall of non-strikers and crossovers and additional unfair labor practices committed by the employer, and held that the lockout was discriminatorily motivated in violation of Sections 8(a)(1) and (3) of the Act, relying on Midwest Generation, EME, LLC. The Board can find discriminatory intent in an employer’s action based on other alleged unfair labor practice charges.

See Dresser-Rand Co. & Iue-Cwa, Afl-Cio, Local 313, 358 N.L.R.B. No. 97 (2012); see also Midwest Generation, EME, LLC, 343 N.L.R.B. 69, 71 (2004);  Michelle Amber, Unfair Labor Practices: Citing Preferences Given to Replacements NLRB Finds Dresser-Rand Lockout Was Illegal, Corporate Law Daily Highlights, Aug. 17, 2012, at D6, available at WL 3525280.

(Development authored by John Marsella)


Bryant v. Salazar

An employer may not take an adverse employment action against an employee for behavior that was caused by the employer’s failure to properly respond to employee’s previous complaints regarding harassment on the basis of membership in a protected class under Title VII of the Civil Rights Act of 1964.  A female employee who was the only African-American employee in her division, alleged that the agency revoked her law enforcement commission in retaliation for her earlier filing of an equal employment opportunity (EEO) complaint after she was subjected to harassment based on her race, when co-workers posted derogatory personal attacks against her in a men’s locker room that referenced her speaking “Ebonics” and an “Ethnic Expressions” catalogue was left under her office door.  To establish a claim of harassment under Title VII, as amended, 42 U.S.C. § 2000e et seq., a complainant must show that: “(1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer.”  The EEOC determined that the employee established that she was subjected to a hostile work environment after being routinely ridiculed and intimidated in the office in a way that reflected racial animus against her, and the agency’s failure to adequately respond to her complaint led directly to the behavior—including crying, absences from work, and a withdrawn demeanor while at work—that the agency cited as its basis for suspending her commission.

See Bryant v. Salazar, EEOCDOC 0120091468 (Aug. 31, 2012)l see also Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Westlaw EEOC Compliance Newsletter, PN9100000000008712, 2012 WL 4468451 (Oct. 1, 2012);

(Development authored by Eileen Lohmann)


Spinner v. Landau and Assocs.

Contractors working for publicly traded companies are afforded whistle blowing protection when reporting  violations of laws or Security and Exchange Commission regulations identified under Section 806 of the Sarbanes-Oxley Act (“SOX”).  In Spinner, the respondent employer fired a certified public accountant after he reported an internal control and reconciliation problem at S.L. Green, the company his firm was hired to audit.  The Department of Labor (“DOL”) defines an employee as, “an individual presently or formerly working for a company or company representative . . . or an individual whose employment could be affected by a company or company representative.” Consistent with the DOL’s understanding, the Administrative Review Board found that Section 806 affords whistleblower protection to, “employees of contractors, subcontractors, or agents of publicly traded companies, regardless of the fact that the contract, subcontractor, or agent was not itself a publicly traded company.”  Spinner v. Landau and Assocs., 2010-SOX-29, ARB’S Final Decision and Order of Remand, (Dep’t of Labor May 31, 2012).  See also Charles v. Profit Inv. Mgmt., 2005-SOX-015, ARB’s Final Decision and Order (Dep’t of Lab. Mar. 31, 2011). 29 C.F.R. § 1980.101.

(Development authored by Danielle Gonnella)


Department of Labor agreement with State of California to reduce misclassification of employees

The United States Department of Labor (“DOL”) and the State of California (“California”) have signed an agreement to reduce the misclassification of employees as independent contractors within in the state’s labor market. According to the California Department of Industrial Relations, employers willfully classify workers as independent contractors to avoid paying payroll taxes, maintaining workers’ compensation coverage, and following wage and hour requirements. Signed December 21, 2011, the agreement outlines a commitment to share information among various federal and state agencies, partner on outreach efforts to educate local businesses about proper classification, and to create other initiatives such as joint-agency investigations of violators. Effective January 1, 2012, with the signing of California Senate Bill 459, employers who willfully misclassify individuals as independent contractors face fines ranging from $5,000-$25,000 per violation. As a result of the agreement between the DOL and California a new law was created to combat the trend of employee misclassification.

See US Labor Department, California sign agreement to reduce misclassification of employees as independent contractors, U.S. Department of Labor (October 25, 2012, 9:00 PM),; see also Independent contractor versus employee, California Department of Industrial Relations (October 25, 2012, 9:00 PM),; Partnership Agreement Between the U.S. Department of Labor and California Labor and Workforce Development Agency,  (October 25, 2012, 9:00 PM),; Cal. Lab.Code §226.8 (2012).

(Development authored by Gregory Evans)


Perry v. State Civil Service Commission

Under the Civil Service Act, a cause for removal should be personal to the employee so that it renders the employee unfit for his position, which will make dismissal justifiable, so being that it is for the good of the service.  Perry, after being promoted to a management position in the Department of Labor and Industry, brought a firearm to work and was suspended for violating company policies. Just cause must be merit-related, and the criteria for determining whether an appointing authority had just cause for removal must touch upon the employee’s competency and ability in some rational and logical manner. There was evidence to establish that there was just cause to remove Perry because he knew or should have known of the Department of Labor and Industry’s prohibition of weapons in the workplace because he was given a copy of the Weapons Policy.

See Perry v. State Civil Service Commission, Perry v. State Civil Serv. Comm’n, 38 A.3d 942 (Pa. Commw. Ct. 2011); see also 71 Pa. Stat. Ann. § 741.807 (2012); Daniel E. Feld, Federal Constitutional Right to Bear Arms, 37 A.L.R. 696 (1978); Wei v. State Civil Serv. Comm’n, 961 A.2d 254 (Pa. Commw. Ct. 2008); 38 A.3d 942.

(Development authored by Farrah Champagne)


Felicia Coleman v. Ray Mabus, Secretary of the Navy

The Navy improperly dismissed Complainant Coleman’s claims of harassment and discrimination because the agency failed to address the pattern of harassment and instead focused on each detailed incident individually. Coleman, a female Police Officer at the Navy Yard facility in Washington DC, submitted a complaint to the Navy detailing a pattern of harassment and discrimination on the bases of sex, disability, and reprisal for prior EEO protected activity. In determining whether a complainant’s harassment claims sufficiently state a hostile or abusive work environment, the agency must look at all of the complained of incidents together as a whole. When looking at the incidents together, a pattern of harassment developed, which made it sufficient for the agency to address Coleman’s complaints.

See Coleman v. Dep’t of the Navy, EEOC Appeal No. 0120121880 (September 7, 2012); see also Estate of Routson v. Nat’l Aeronautics and Space Admin., EEOC Request No. 05970388 (February 26, 1999); Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv., EEOC Request No. 05940481 (February 16, 1995); Meaney v. Dep’t of the Treasury, EEOC Request No. 05940169 (November 3, 1994).

(Development authored by Samantha Aster)


Matter of Atl. Scaffolding Co.

Workers who walk off the job together over wages, and do not interfere with the employer’s property rights nor engage in any other misconduct; are protected by the National Labor Relations Act (“NLRA”), and therefore cannot be discharged for such activity. Employees engaged in a workplace protest, and those who did not return for work the next day were discharged for “job abandonment.” According to the NLRA, workers who engage in an on the job protest cannot be discharged for such activity because they are engaging in a protected, concerted activity under Sections 7 and 8(a)(1). 29 U.S.C. §§ 157, 158 (a)(4). Since the work stoppage did not interfere with the employer’s property, and the employer did not present sufficient evidence of job abandonment, the Board found that the employer unlawfully discharged the employees. Matter of Atl. Scaffolding Co., 356 N.L.R.B. No. 113 (2011).

See also NLRB Office of Public Affairs, Settlement distribute more than $300,000 to unlawfully discharged workers in Texas, NLRB (Feb. 10, 2012), available at; Summary of NLRB Decisions for the Week of March 14-18, 2011, NLRB (last accessed Mar. 17, 2012), available at

(Development authored by Nicholas Devyatkin)


Comite de Apoyo a los Trabajadores Agricolas v. Solis

The Department of Labor (“DOL”) must issue reasoned explanations for removing a provision from the regulations mandating that an employer seeking H-2B visas for temporary foreign workers contact unions “in circumstances where it is appropriate for the occupation and customary to the industry.” When promulgating new regulations in 2008, the DOL deviated from its previous requirement that employer’s applying for H-2B authorization contact unions “appropriate to the occupation,” to a regulation which only required employers already party to a collective bargaining agreement to contact the union. An agency final rule that deviates significantly from established practice must include an examination of the fact and rational explanation for the change to avoid a finding that the change is arbitrary and capricious. The Court determined that the change to the union provision, among others, was arbitrary for lack of appropriate reasoning. Comité de Apoyo a los Trabajadores Agricolas v. Solis, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010); see also Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 60 C.F.R. §§ 655-66 (2008).

20 C.F.R. § 655 & 29 C.F.R. § 503 Final Rule

In response to Solis, the DOL issued a new regulation, to take effect April 23, 2012, providing more specific circumstances under which an employer was obligated to contact a labor union. The new regulation also shifted the burden to the State Workforce Agency (“SWA”) to contact unions when the labor in question is typically unionized.. In an effort to increase H-2B worker protections, and therefore “ensure that the employment of H-2B workers does not adversely affect the wages and working conditions of U.S. workers,” the regulation also includes reimbursement for visa and travel fees, as well as a guarantee to give three fourths either of the promised full time labor or payment if there is no work to be done. Furthermore, the regulation changes the H-2B procedure from an attestation model (where the employer merely attests to the wages, hours and availability of US citizens for a job) to a certification model (where the employer must certify these factors by providing evidence). Temporary Employment of Foreign Workers in the United States 20 C.F.R. § 655 (2012); Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 77 FR 10038 (Feb. 21, 2012) (to be codified at 29 C.F.R. part 503) (2012); see also Laura D. Francis, DOL Issues Final Rule Adding Worker Protections to H-2B Program, Bloomberg BNA (Feb. 14, 2012)

(Development authored by Leila Higgins)


Matter of Mezonos Maven Bakery, Inc.

The National Labor Relations Board (“NLRB”) may not award backpay to undocumented employees, regardless of whether the employee or employer violated the Immigration Reform and Control Act (“IRCA”).  Respondent employer hired and later discharged aliens without examining work-authorization documents, resulting in charges filed against the respondent for unfair labor practices. The Supreme Court’s holding in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), categorically precludes undocumented employees from awards of back pay, since the criminal fraud such employees must engage in runs counter to the policies of IRCA. Matter of Mezonos Maven Bakery, Inc., 357 N.L.R.B. No. 47 (Aug. 9, 2011).

(Development authored by Ashlyn Marquez)


Matter of Int’l Bhd. Teamsters, Local 391 and Barry Sawyers

Section 8(b)(1)(A) of the Labor Management Relations Act (LMRA) prohibits a labor organization or its agents from the restraint or coercion of  employees in exercising their protected rights—including the right to access the processes of the National Labor Relations Board (NLRB).  A local union violated the LMRA when its business agent—in reference to a nonmember employee who had filed a charge with the NLRB—told a group of employees that “the fucking scab needs to be stopped.”  According to the LMRA, if a reasonable listener could conclude that a union agent, regardless of intent, is urging employees to prevent a nonmember from exercising a protected right, Section 8(b)(1)(A) has been violated.  The NLRB found the use of the derogatory term added a hostile edge to his statement, and therefore constituted coercion. Matter of Int’l Bhd. Teamsters, Local 391 and Barry Sawyers, 357 N.L.R.B. No. 187 (Jan. 3, 2012).  See also Michael J. Friedman, Wrestling the Giant Squid: The Independence of the Duty of Fair Representation Claim, 36 Wayne L. Rev. 1237, 1241 (1990);Summary of NLRB Decisions for Week of January 3-6, 2012, NLRB (last accessed Mar. 17, 2012), available at

(Development authored by Colten Hall)