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

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.

Threats To Engage In A Secondary Boycott Of Department Store And Mock Funerals At Health Care Facility Are Not Prohibited By The National Labor Relations Act.
[June 2007] In Sheet Metal Workers' Intern. Ass'n, Local 15, AFL-CIO v. NLRB, the federal Court of Appeals for the District of Columbia reversed the National Labor Relations Board's findings that a Union (1) engaged in unfair labor practices by sending a threatening letter regarding its intentions to picket; and (2) engaged in unlawful picketing when it staged a mock funeral at a hospital.

House Of Representatives Seeks To Overturn Ledbetter Decision.
[June 2007] On June 27, 2007, the House Education and Labor Committee considered the proposed "Ledbetter Fair Pay Act," which would overturn the Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., and allow claims for wage discrimination based on decisions outside the 180/300 day limitations period for filing timely EEOC charges.

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