Supreme Court Issues Decisions that Change Employment Law Landscape

The U.S. Supreme Court wrapped up its 2013 session by handing down three decisions that may significantly affect recent controversial rulings by the National Labor Relations Board, Affordable Care Act mandates on employer birth control coverage and union fees imposed on certain government employees.


In National Labor Relations Board v. Noel Canning, the Court invalidated President Barack Obama’s recess appointments in 2012 to the five-member Board, an administrative agency that decides whether an employer engaged in unfair labor practices.  The Court held the President’s appointment of three members to the Board was unconstitutional because the Senate, which normally advises and consents on such appointments, was not in a sufficiently long enough recess to invoke the Recess Appointments Clause of the Constitution. 

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Employers May Now Have To Provide Employees With The Added Comfort Of Working From Home

The Sixth Circuit Court of Appeals has put employers on notice that they may need to accommodate employees with disabilities by allowing them to work remotely from home, forcing employers to reconsider whether a physical presence in the office is an essential job function.

With its decision in EEOC v. Ford, 2014 U.S. App. LEXIS 7502 (6th Cir. 2014), the court has redefined what employers can deem to be the essential job functions of their employees.  Now absent from this list is the need to attend work at a brick-and-mortar location.   Continue reading

Some Employers Likely to See Increased Litigation Costs in EEOC Cases

Employers in Indiana, Illinois, and Wisconsin are likely to see their legal fees increase as a result of a Seventh Circuit decision that allows the U.S. Equal Employment Opportunity Commission to file suit immediately instead of first trying to negotiate a settlement with the employer.   Continue reading

NLRB Stands Behind Swearing Salesman

Employers beware: the National Labor Relations Board (“Board”) decided that an employer, a car dealership, unlawfully discharged an employee after his lewd outburst in a meeting. On remand from the United States Court of Appeals for the Ninth Circuit, the Board reapplied the four-factor Atlantic Steel balancing test to determine if the employee’s outburst was concerted activity or whether he in fact sacrificed his protection under the National Labor Relations Act (“NLRA”). Continue reading

President Obama Calls for Revisions to FLSA’s Overtime Regulations

On March 13, 2014, President Obama signed a Presidential Memorandum that directed Secretary of Labor Tom Perez to review the Fair Labor Standards Act (“FLSA”)[1]  and revise the  regulations that define who qualifies for overtime protection.  The Memorandum was spurred by what President Obama sees as the degradation of the spirit of FLSA—if you work more, you are paid more—leaving millions of low-paid salaried workers without overtime protection.[2]  “I’m directing Tom Perez, the secretary of labor, to restore the commonsense principle behind overtime,” Obama said.  “If you go above and beyond to help your employer and your company succeed, then you should share a little bit in that success.” Continue reading

BYOD: Where the Employee and the Enterprise Intersect

The proliferation of bring your own device programs – or “BYOD” as it is commonly referred – has drastically changed today’s corporate workplace environment. Employees are availing themselves of smart phones, tablets, and other personal handheld devices to perform the duties that encompass their employment. With more prevalent use of personal devices for work related activity, “an organization must think beyond technological challenges; it must address business policies, management processes and governance as well.”[1] Continue reading

The EEOC Loses Background Check Battle In The 6th Circuit

The Sixth Circuit issued a much anticipated ruling on April 9, 2014 related to the Equal Employment Opportunity Commission’s (“EEOC’s”) systemic targeting of employer background check policies.  The very first sentence of the Court’s decision very poignantly foreshadows how the EEOC was to fare in the seven page decision authored by Justice Raymond Kethledge, and also points out the difficulty the federal agency will face in light of its own background check policy in which it runs credit checks on applicants for 84 of the agency’s 97 positions:  “In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.”  (emphasis added). Continue reading