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August 2015 Archives

NLRB Joint Employer decision applies an old test to a modern problem

On Thursday, the National Labor Relations Board (NLRB) issued a decision that may have a big impact on the fast food organizing campaigns currently going on around the country. In Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), the NLRB updated the test for whether two companies are "joint employers" of the same group of workers. This issue arises in cases where one agency supplies workers, like temporary employees, to work for another company. It can also arise in franchisor/franchisee arrangements. Noting that these kinds of work arrangements have become much more common in recent decades, the NLRB adjusted its test to keep pace with the changing economy.

Osborne v. Baxter Healthcare Corp., No. 14-8047 (10th Cir. Aug. 24, 2015)

The Tenth Circuit reviews an ADA claim of a deaf applicant for technician at a plasma-donation center. It holds that a health-care provider cannot fend off an analysis of whether a proposed accommodation for a disabled employee is reasonable simply by arguing that any risk to patients, however infinitesimal, is unacceptable.

Zamora v. City of Houston, No. 14-20125 (5th Cir. Aug. 19, 2015)

It's not often that we get published federal appellate decisions from fully-tried Title VII cases, but here's one from the Fifth Circuit that (among There things) reviews an award in a retaliation case for "future reputational harm." The panel substantially affirms the $127,000 award, though it remands the case for reconsideration of remittitur in light of the plaintiff abandoning one of his damages theories on appeal.

Burton v. Freescale Semiconductor, Inc., No. 14-50944 (5th Cir. Aug. 10, 2015)

The Fifth Circuit becomes the latest circuit to grapple with the temporary (or joint) employer issue under the federal anti-discrimination laws. It concludes in this case that There was a genuine dispute of material fact about which entity (or both) employed the plaintiff for purposes of the ADA. The panel also holds that There was a genuine dispute about pretext, where the alleged grounds for termination - among There things, her using the Internet while at work - may not have been known to the decision maker at the time the plaintiff was fired.

District Court Split Persists Over Dodd-Frank's Definition of "Whistleblower"

When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") in 2010, it included new protections for whistleblowers who spoke up about securities laws violations. Despite Congress's clear intent to shield whistleblowers from retaliation, courts have been divided over just who qualifies as a "whistleblower."

Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, No. 14-2843 (7th Cir. Aug. 7, 2015)

One of the challenges recently facing groups of employees hurt by discriminatory employment practices has been to persuade courts to allow the entire controversy to be decided in a single class action. Today, the Seventh Circuit issued a decision that helps break down some of the barriers to effective class certification, in a case involving a city school board's policy of placing schools on suspension - primarily affecting minority neighborhoods - and firing teaching staff.

Companies Must Disclose Ratio of CEO Pay to Median Employee Pay

The SEC voted on Wednesday to require public companies to disclose the ratio of their CEOs' compensation to the median compensation of its employees. The new rule, which was approved by a 3 to 2 vote, stems from a mandate included in the Dodd Frank Wall Street Reform and Consumer Protection Act.

Littlejohn v. City of New York, No. 14-1395 (2d Cir. Aug. 3, 2015)

Addressing an issue that has sowed uncertainty among federal courts, the Second Circuit holds that a Title VII plaintiff satisfies the Rule 8 pleading standard of "plausibility" under the Supreme Court's Iqbal decision simply by alleging the prima facie elements of her case. Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), remains good law, and the plaintiff need not anticipate the defendant's furnishing of a non‐discriminatory justification for its action in the complaint. The panel also rejects application of a so-called "manager rule" that would preclude a retaliation claim by an EEO director who opposes discrimination in the course of her duties.

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