We issue E-Updates to our clients via e-mail to inform them of important new developments.

Non-Disabled Job Applicants May Sue Under Americans With Disabiities Act FOor Improper Pre-Offer Medical Inquiries
[February 2010] In its 2005 decision, Smith v. City of Jackson, the U.S. Supreme Court stated that disparate impact claims (involving employment actions that have a disproportionately negative impact on a protected class) are recognized under the Age Discrimination in Employment Act (ADEA), but further explained that such claim is not stated where the employer shows that its decision was based on a "reasonable factor other than age" (RFOA) even though the impact of the decision disproportionately affects older workers.

Employees May Petition for Decertification Following Employer's Voluntary Union Recognition
[February 2010]A Regional Director for the National Labor Relations Board recently confirmed that employees may file a petition for decertification following an employer's voluntary recognition of a union as the exclusive collective bargaining representative for a particular unit of employees.

To read the February 2010 E-Update, click here.

Non-Disabled Job Applicants May Sue Under Americans With Disabiities Act FOor Improper Pre-Offer Medical Inquiries
[January 2010] The U.S. Court of Appeals for the Eleventh Circuit has ruled that a job applicant who is subject to a pre-offer medical inquiry in violation of the Americans with Disabilities Act (“ADA”) may bring a legal claim against the employer, even if the applicant is not disabled.

Restrictions Imposed By An Employer After The Onset Of Union Organizing Activity Violated National Labor Relations Act
[January 2010] A decision and order of the National Labor Relations Board finding that an employer’s implementation of restrictive policies after the onset of a union organizing drive was upheld recently in Loparex LLC v. NLRB.

To read the January 2010 E-Update, click here.

COBRA Subsidy Extended.
[December 2009] President Obama signed a law on December 19, 2009, extending the federal subsidy for COBRA benefits, which provide recently unemployed workers with rights to insurance coverage under their former employer's health plans.

Collective Bargaining Agreement Governs Compensation for Clothes-Changing Time
[December 2009] In a case in which Shawe Rosenthal LLP represented the employer, the U.S. Court of Appeals for the Fourth Circuit held that whether union employees are paid for putting on and taking off protective gear can be left up to collective bargaining.

To read the December 2009 E-Update, click here.

Court Rules Employee on Indefinite Leave of Absence Could Be Entitled to Reasonable Accommodation.
[November 2009] The Maryland Court of Special Appeals ruled in a disability discrimination claim under the Montgomery County Human Rights Act that an employee who provided a doctor’s note to his employer stating that he needed leave from work “indefinitely” was not, as a matter of law, no longer qualified for the job. Accordingly, the Court held that the employee’s termination claim should be remanded for a jury trial.

FLSA Professional Exemption Held Inapplicable to Employees Who Lacked Advanced Academic Degree.
[November 2009] The U.S. Court of Appeals for the Second Circuit has ruled that an employee whose work was highly specialized but who nonetheless did not possess an advanced academic degree did not qualify as an exempt employee based on the professional exemption to the FLSA and that the employer willfully violated the FLSA by classifying him as exempt.

Appellate Court Upholds Arbitrator’s Award of Bonuses to Striking Employees.
[November 2009] The U.S. Court of Appeals for the Fourth Circuit upheld an arbitrator’s decision requiring bonuses to be paid to employees who were on strike at the end of the year despite the fact that company policy required employees to be actively working at year end to be eligible.

To read the November 2009 E-Update, click here.

Final Rules Released on Genetic Information Nondiscrimination Act.
[October 2009] On November 21, 2009, the Genetic Information Nondiscrimination Act of 2008 (GINA) will go into effect. The U.S. Departments of Health and Human Services, Labor and Treasury have issued interim final rules that prevent employers, insurers, health care providers and others from using genetic information in determining health care coverage.

President Obama Implements New FMLA Military Leave Amendments.
[October 2009] On October 27, 2009, President Obama signed the 2010 National Defense Authorization Act, which contained new amendments to the Family and Medical Leave Act (FMLA).

To read the October 2009 E-Update, click here.

H1N1 in the Workplace.
[September 2009] This month, the U.S. Food and Drug Administration officially licensed the H1N1 influenza (swine flu) vaccine and the Department of Health and Human Services announced that the vaccine will be available in the coming weeks. Twenty-six states, including Maryland, are reporting widespread influenza activity, prompting employers to take steps to prepare for a possible influenza pandemic and its impact on the workplace.

EEOC Issues Proposed ADAAA Regulations.
[September 2009] Pursuant to the ADA Amendments Act of 2008, the Equal Employment Opportunity Commission has issued proposed revisions to its Americans with Disabilities Act regulations, along with “Questions and Answers” on the proposed regulations. These proposed regulations detail and support the significant expansion of the ADA’s definition of “disability,” resulting in substantially increased protections for employees and greater obligations for employers. The proposed revisions to the ADA regulations are now open for public comment for 60 days from the date of publication. Once the comment period has expired, the EEOC will take some time to consider the comments before issuing final regulations.

To read the September 2009 E-Update, click here.

Court Rules CFO's Termination After Unsupported Complaints Did Not Give Rise To SOX Claim.
[August 2009] The U.S. Court of Appeals for the Fourth Circuit has ruled that an employee who claims he was retaliated against for complaints about accounting improprieties does not have a claim under the Sarbanes Oxley Act (“SOX”) unless he has “definitively and specifically” advised the employer how the practice violated a securities law prior to the adverse action. The Fourth Circuit covers Maryland, the Carolinas and the Virginias.

Recent Decision Favors Class Action Employment Discrimination Cases.
[August 2009] It appears that the historically conservative U.S. Court of Appeals for the Fourth Circuit is relaxing standards for class actions in employment cases. This could signal an increase in such actions.

To read the August 2009 E-Update, click here.

Employer’s Obligation to Remediate a Hostile Work Environment Requires Concrete and Consequential Actions.
[July 2009] The Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, North Carolina, South Carolina, and West Virginia) in a hostile work environment case, described the steps than an employer should take that would be “reasonably calculated to end the harassment.”

Unwritten Internal Complaints Are Not a Protected Activity Under the FLSA.
[July 2009] The Court of Appeals for the Seventh Circuit recently held that the retaliation provision of the Fair Labor Standards Act (“FLSA”) does not protect an employee who makes a purely verbal complaint.

To read the July 2009 E-Update, click here.

Potential EFCA Implications of New Catholic Healthcare-Union Guidelines
[June 2009] On June 23, 2009, the United States Conference of Catholic Bishops released a set of principles entitled Respecting the Just Rights of Workers: Guidance and Options for Catholic Health Care and Unions, intended to create a fair procedure by which health care workers can freely decide if they want to have union representation. These guidelines, representing more than ten years of discussion between leaders of Catholic health care and leaders of the labor movement, reflect significant concessions on the part of both management and labor, and could have an influence on the proposed Employee Free Choice Act (EFCA).

In A Rare Reverse Discrimination Case, The U.S. Supreme Court Rules In Favor Of White Firefighters Who Claim They Were Denied Promotions Because Of Their Race.
[June 2009] On June 29, 2009, in Ricci v. DeStefano, the U.S. Supreme Court held, in a 5-4 decision, that the City of New Haven, Connecticut’s decision to discard and refuse to certify promotion test results (that had non-minority candidates outperforming minority candidates) to avoid disparate impact claims by the minority firefighters under Title VII of the Civil Rights Act, was itself a disparate treatment violation of the non-minority firefighter’s Title VII rights.

To read the June 2009 E-Update, click here.

Employer’s Threat To Terminate Employee Upon Expiration Of FMLA Leave Can Be Evidence Of FMLA Interference And Retaliation.
[May 2009] A federal district ruled recently that a supervisor who asked an employee (who had previously taken FMLA leave) if she would be taking “another three months off” and followed up with a letter threatening termination if her leave extended beyond her FMLA entitlement was engaging in conduct that could constitute unlawful interference and retaliation under the FMLA.

To read the May 2009 E-Update, click here.

The General Assembly Gives Clarity To The Maryland Flexible Leave Act
[April 2009] Shawe Rosenthal attorneys Liz Torphy-Donzella and Fiona Ong worked this past session with the Maryland Chamber of Commerce and a coalition of employer and employee interest groups to draft legislation to clarify the Maryland Flexible Leave Act (MFLA).

The Maryland General Assembly Legislative Wrap Up
[April 2009] In addition to passing legislation to clarify the MFLA, the Maryland General Assembly ended its 426th Session on April 13, 2009, passing several laws affecting employers.

President Obama Will Nominate Two Democrats To The NLRB
[April 2009] The President announced his intention to nominate two union-side attorneys as members of the National Labor Relations Board.

To read the April 2009 E-Update, click here.

First Circuit Issues A Deterrent Against Overbroad Confidentiality Provisions Under The National Labor Relations Act
[March 2009] The Court of Appeals for the First Circuit recently affirmed the National Labor Relations Board’s decision that a confidentiality provision, which employees could reasonably construe to prohibit them from discussing their wages and compensation with “other parties,” violated the NLRA.

Employee's Profanity During Labor Negotiations Is Not Protected Activity Under the National Labor Relations Act
[March 2009] In Media General Operations, Inc. v. NLRB, the Court of Appeals for the Fourth Circuit held that a union employee who used profane and offensive language when talking about the company’s bargaining tactics during labor negotiations forfeited the protection of the National Labor Relations Act.

No Age Discrimination in Redistribution of Terminated Employee's Former Duties To Existing Workforce
[March 2009] The Sixth Circuit Court of Appeals recently held that an employer did not discriminate against a 57-year old manager based on his age when it terminated his employment and redistributed the manager’s duties rather than hiring a significantly younger replacement.

To read the March 2009 E-Update, click here.

Stimulus Bill Includes Significant COBRA Subsidy Resulting In Historic COBRA Changes
[February 2009] The stimulus package signed into law by President Obama on February 17, 2009, contains the most sweeping change to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) since its enactment over twenty years ago.

Union Retirees Vested With Retiree Health Benefits Only If Retirement Occurred During Term of Collective Bargaining Agreement
[February 2009] In Winnett v. Caterpillar, Inc., the Court of Appeals for the Sixth Circuit recently held that a long-expired collective bargaining agreement vested lifetime retiree health benefits only in those employees who retired during the term of the agreement.

Failure To Assess Employee’s FMLA Eligibility Results in Liquidated Damages
[February 2009] The District Court for the Eastern District of Pennsylvania recently found that an employer’s failure to take any steps to ascertain an employee’s rights pursuant to the Family Medical Leave Act (“FMLA”) entitled plaintiff to liquidated damages.

To read the February 2009 E-Update, click here.

Labor and Employment Agenda of the 111th Congress
[January 2009] With Democrats controlling both branches of the government for the first time since 1992, employers can expect a “healthy dose” of bills aimed at the workplace. At the head of the pack is the Lilly Ledbetter Fair Pay Act, which was passed by both the House and the Senate and was signed into law by President Obama on January 29, 2009.

Successor Employer Has A Duty to Bargain With A Predecessor Union
[January 2009] When a company acquired an ongoing business and began operating with a majority of the employees of the acquired company, it refused to recognize the union that had represented the employees and, instead, recognized the union that represented company employees at the company’s other locations. The U.S. Court of Appeals for the D.C. Circuit held that this violated the National Labor Relations Act.

To read the January 2009 E-Update, click here.

MySpace Posting Can Be Basis for Termination
[December 2008] A federal district court in Pennsylvania addressed for the first time whether an individual may be terminated from a program based on the content on her MySpace page, and found the termination was legal.

NLRB Issues Guidance Concerning Withdrawal of Recognition Based on Loss of Majority Support
[December 2008] The General Counsel of the National Labor Relations Board (NLRB) has issued an updated guideline memorandum addressing when an employer may legally withdraw recognition from an incumbent union.

To read the December 2008 E-Update, click here.

E-Verify Mandatory For Federal Contractors
[November 2008] Beginning January 15, 2009, federal contractors and subcontractors will be required to use the federal E-Verify system to verify an employee's authorization status.

Mandated Inpatient Alcohol Treatment Does Not Violate The Americans with Disabilities Act
[November 2008] The Court of Appeals for the Eighth Circuit recently held that an employer did not violate the Americans with Disabilities Act (“ADA”) when it required its employee to undergo inpatient alcohol treatment.

To read the November 2008 E-Update, click here.

HIV-Positive Job Applicant Unable To Maintain An ADA Claim When She Could Not Meet Job's Lifting Requirements
[October 2008] The U.S. Court of Appeals for the Seventh Circuit recently confirmed that a job applicant who was HIV positive was unable to proceed with her claim under the Americans with Disabilities Act (ADA) because the applicant could not prove that it was her alleged disability, rather than her inability to meet the job's lifting requirements, that was the reason she was not hired.

Employer’s Open Door Policy Document Is A Valid And Enforceable Arbitration Agreement
[October 2008] The Court of Appeals for the Eleventh Circuit recently held that an employer’s Open Door Policy document was an enforceable agreement to arbitrate all employment-related disputes, including a termination dispute, despite the language in the policy suggesting that the employee first consult with a company facilitator to determine whether the dispute is arbitrable.

To read the October 2008 E-Update, click here.

Hospital Responsible As Joint Employer For Paying Overtime To Temporary Agency Employee
[September 2008] The United States Court of Appeals for the Second Circuit recently held that a hospital was a joint employer of a temporary agency employee and, therefore, was responsible for paying the agency employee’s overtime under the Fair Labor Standards Act (FLSA).

No FMLA Protection for Employee Who Refused to Provide Medical Documentation
[September 2008] The United States Court of Appeals for the Seventh Circuit recently held that an employee who refused to work eight-hour days and failed to submit medical certification requiring a reduced schedule under the Family and Medical Leave Act (FMLA) was properly terminated by her employer for insubordination and excessive absenteeism.

To read the September 2008 E-Update, click here.

Title VII Protects Women Needing Infertility Treatments
[August 2008] In Hall v. Nalco Co., a case of first impression for federal appellate courts, the United States Court of Appeals for the Seventh Circuit held that terminating an employee because of time missed for in vitro fertilization procedures may be a violation of Title VII, as amended by the Pregnancy Discrimination Act (“PDA”).

Legislative Round-Up
[August 2008] There are several pieces of legislation pending in Congress that, if passed, will have a significant impact on employers.

To read the August 2008 E-Update, click here.

EEOC Issues Guidance on Religious Harassment and Discrimination Under Title VII
[July 2008] On July 23, 2008, the EEOC issued updated pronouncements on the meaning of “religious discrimination” under Title VII, how to manage and address competing employee rights in the area of religion, and how to avoid engaging in religious discrimination in the workplace.

Maryland Court of Special Appeals Denies Enforcement of Covenant Not TO Compete
[July 2008] On July 7, 2008, the Maryland Court of Special Appeals affirmed a trial court’s refusal to enforce non-competition covenants against low-level employees who went to work for a competitor after their former employer lost the government contracts on which they were employed.

To read the July 2008 E-Update, click here.

DOL Issues Opinion Letter On Hours Worked Under FLSA
[June 2008] In a recent opinion letter, the U.S. Department of Labor ("DOL") addressed the issues of missed meal breaks, overtime, and rounding off time under the Fair Labor Standards Act ("FLSA").

Ninth Circuit Holds Government Employees Have Privacy Rights In Text Messages
[June 2008] The United States Court of Appeals for the Ninth Circuit held that a government agency's review of its employees' text messages violated the Stored Communications Act, and violated employee privacy rights under the U.S. and California Constitutions.

To read the June 2008 E-Update, click here.

Genetic Information Nondiscrimination Act Becomes Law
[May 2008] After languishing in Congress for more than a decade, on May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (“GINA”). GINA creates broad prohibitions on the collection, use, and disclosure of genetic information in the workplace, and applies to all employers covered by Title VII of the Civil Rights Act of 1964 (i.e., employers with 15 or more employees). GINA’s employment provision will become effective eighteen months from the date President Bush signed the law.

Employees May Now Sue For Retaliation Under Section 1981
[May 2008] On May 27, 2008, the U.S. Supreme Court broadened the retaliation playing field once again, and held that employees may now bring retaliation claims against their employers under the Civil Rights Act of 1866 (“Section 1981”), a law that prohibits discrimination with regard to the right to make and enforce contracts, and as such, has exclusively and historically had been limited to permitting only “traditional” race discrimination in employment claims.

To read the May 2008 E-Update, click here.

FMLA Applies To Agency Employee Assigned To Employer With Less Than 50 Employees
[April 2008] The United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) recently held that an employer who did not meet the FMLA’s 50-employee threshold could nonetheless be liable for violating the FMLA’s job restoration requirement with respect to an employee who had been assigned to the employer by a temporary staffing agency.

Comments And Behavior Directed Toward Muslim American During Two-Year Period Can Establish Religiously Hostile Work Environment
[April 2008] The Fourth Circuit Court of Appeals recently held that a Muslim American, who alleged that he had been subjected to demeaning comments and degrading actions directed at him because of his Muslim faith over a two-year period, presented sufficient evidence that the conduct he experienced was sufficiently severe and pervasive to warrant a jury trial.

To read the April 2008 E-Update, click here.

EEOC Provides Guidance on Employment of Veterans With Service-Connected Disabilities
[March 2008] The EEOC has issued question-and-answer guides providing technical assistance for employers and veterans on workplace issues affecting veterans with service-connected disabilities.

Nursing Home Unlawfully Withdrew Recognition of the Union
[March 2008] In NLRB v. HQM of Bayside, LLC, the U.S. Court of Appeals for the Fourth Circuit upheld a National Labor Relations Board (NLRB) ruling that a Maryland nursing home operator violated the National Labor Relations Act (NLRA) by unilaterally withdrawing recognition of the union while there was still majority support within the bargaining unit.

Claim Based on “Association Discrimination” Can Go to the Jury
[March 2008] The U.S. Court of Appeals for the Seventh Circuit recognized a possible claim of “association discrimination” under the Americans with Disabilities Act (ADA) where a self-insured hospital terminated an employee in order to avoid having to continue paying for her husband’s expensive cancer treatment.

To read the March 2008 E-Update, click here.

Individuals Can Sue Under ERISA For Losses To Individual Accounts
[February 2008] The United States Supreme Court just issued a decision that enables an individual participant in a 401(k) plan to sue his employer or the Plan administrator under the Employee Retirement Income Security Act (ERISA) for breach of fiduciary obligations.

Complying with Differing Religious Accommodation Requirements
[February 2008] A confusing issue for employers is how to handle an employee’s request for a religious accommodation. Title VII requires an employer to provide a reasonable accommodation for an employee’s religious beliefs and, under Title VII, an accommodation is not “reasonable” if it results in more than a de minimis burden on the business. State law, on the other hand, may impose different or more burdensome requirements.

To read the February 2008 E-Update, click here.

Employee Walkout To Protest Manager Termination Is Not Protected Under The NLRA
[January 2008] The U.S. Court of Appeals for the Fourth Circuit recently held that an employee walkout to protest the firing of a supervisor was not protected activity under the National Labor Relations Act (NLRA).

Employee Awarded Punitive Damages for Employer’s Refusal to Provide a Sign Language Interpreter
[January 2008] The U.S. Court of Appeals for the Fourth Circuit affirmed an award of punitive damages for a deaf employee, holding that the employer violated the Americans with Disabilities Act (ADA) by failing to provide him with a sign language interpreter.

To read the January 2008 E-Update, click here.

FMLA Expansion For Service Members Poised To Become Law
[December 2007] The U.S. Senate overwhelmingly voted to approve the National Defense Authorization Act, H.B. 1585, which would expand the application of the Family and Medical Leave Act (“FMLA”). The House of Representatives has already approved this bill, and White House officials indicate that President Bush is prepared to sign the bill into law in the near future.

FMLA Requires Individualized Notice
[December 2007] The U.S. Court of Appeals for the Fifth Circuit determined that the Department of Labor’s regulations requiring employers to give individualized notice to employees regarding their Family and Medical Leave Act (“FMLA”) leave are valid and enforceable.

To read the December 2007 E-Update, click here.

Union's Loss Of Majority Support Found Where Employees Sought Vote To Remove The Union
[November 2007] In Wurtland Nursing & Rehabilitation Center, the National Labor Relations Board (NLRB) reversed the administrative law judge's decision and held that the employer did not violate the National Labor Relations Act by unilaterally withdrawing recognition from the Union as the employees' bargaining representative.

Payment Of Wages And Benefits For Sixty Days Following Plant Closure Satisfied WARN
[November 2007] The United States Court of Appeals for the Fourth Circuit recently held that an employer did not violate the Worker Adjustment and Retraining Notification Act (“WARN Act”) when it ceased all operations at its plant without prior notice of the shutdown, but thereafter, paid full wages and benefits for the next sixty (60) days to all of its employees who did not accept work with the successor employer.

To read the November 2007 E-Update, click here.

"No-Match" Regulations Placed On Hold
[October 2007] A federal judge halted the imminent crackdown on U.S. companies employing illegal immigrants. Finding that implications on employees and employers alike would be “staggering,” the judge issued an order suspending President Bush’s plan to pressure employers to fire more than 8 million workers with suspect Social Security Numbers.

Card Check Recognition Can Be Overturned By A Decertification Vote Within 45 Days
[October 2007] In Dana Corp., the National Labor Relations Board modified the “recognition-bar” doctrine to address the recent growth of card-check (in which a union obtains cards from employees indicating their support for that union) and other voluntary recognition agreements.

To read the October 2007 E-Update, click here.

Plan That Denied Commissions To Departed Salesman For Orders Placed Before He Left Did Not Violate Maryland Wage Laws
[September 2007] In Hoffeld v. Shepherd Electric Co, Inc., the Maryland Court of Special Appeals rejected a salesman’s claim that he was denied commissions in violation of the Maryland Wage Payment and Collection Act for sales made before he left. The Court ruled that the employer’s policy – under which a commission was paid to the salesperson employed on the product shipment date – did not illegally divest departed salespeople of earned wages.

Supreme Court Labor and Employment Agenda for 2008 Term
[September 2007] The U.S. Supreme Court has so far agreed to review four cases with employment law implications. The new Supreme Court term begins on October 1.

To read the September 2007 E-Update, click here.

Department of Homeland Security Issues Safe-Harbor Procedures for Employers That Receive “No-Match” Letters.
[August 2007] On August 15, 2007, U.S. Department of Homeland Security (“DHS”) issued a regulation that provides a safe harbor from penalties for employers who take specific actions following the receipt of a no-match letter from the Social Security Administration (“SSA”). The regulation becomes effective September 14, 2007.

Employee Able to Work Only Light Duty Status After 12 Weeks Not Entitled to Same or Equivalent Position and Pay Under FMLA.
[August 2007] In Hendricks v. Compass Group USA, Inc., the U.S. Court of Appeals for the Seventh Circuit held that an employee who suffered a work-related injury, and subsequently applied for FMLA leave, was not entitled to the same pay when he returned to work in light duty status.

To read the August 2007 E-Update, click here.

Security-Related Preliminary and Postliminary Activities Are Not Compensable Under the Fair Labor Standards Act.
[July 2007] In Gorman v. the Consolidated Edison Corp., the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a Fair Labor Standards Act (FLSA) collective action lawsuit seeking compensation for pre-shift and post-shift security related activities.

FMLA Settlements Must Be Approved By A Court Or The U.S. Department Of Labor.
[July 2007] In Taylor v. Progress Energy, Inc., the U.S. Court of Appeals for the Fourth Circuit reinstated its earlier decision, which was vacated in 2006, holding that employees cannot waive the right to sue for past or future violations of their Family and Medical Leave Act (FMLA) rights without approval from a court or the Department of Labor (DOL).

To read the July 2007 E-Update, click here.