Apple with a bite taken out of it
In a decision issued last week (here), the National Labor Relations Board ruled that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7 [of the National Labor Relations Act].” So, for example, if you fire someone for filing a Fair Labor Standards Act lawsuit on behalf of himself and other similarly situated employees, then you’ve violated both the FLSA and the NLRA.

Yes, if an employer actually retaliates in that manner, shame on the company. However, two things pique my interest here:

  1. An administrative law judge concluded that the employee was fired because he filed a FLSA collective action. By this time, in the federal court action, the parties had barely scratched the surface on taking discovery and the federal court had yet to certify a class. (Ultimately, the FLSA action was settled amicably in federal court, without any finding of liability).
  2. This decision could prove incredibly broad. For example, how about an employee who claims that he was fired for participating as a witness in a workplace investigation of discrimination, or because he cooperated with the EEOC? Indeed, a logical extension of lask week’s NLRB decision is that the witness’s involvement implicates the terms and conditions of employment for at least two other employees, the victim and the alleged harasser. That sounds like Section 7 activity.

Obviously, the easy solution is don’t discriminate and don’t retaliate. But, lawsuits are based on a series of allegations. And, what percentage of employment lawsuits actually result in a finding of liability? Thus, even the appearance of wrongdoing may be enough for a second bite at the apple with an unfair labor practice charge decided by an Administrative Law Judge.

Image Credit: Grm wnr at the English language Wikipedia [GFDL or CC-BY-SA-3.0], via Wikimedia Commons

About 3 years ago, after a 6-day trial, a Colorado federal jury concluded that a plaintiff had been retaliated against for participating in a discrimination complaint process. But, the jury didn’t award her much: $14,000 for out-of-pocket expenses, and $5,000 for emotional distress, pain, suffering, embarrassment, humiliation or damages to reputation.

Then, her lawyers filed a motion for attorney’s fees and costs. Continue reading

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Many of us, including me, have a loved one or friend who has suffered through mental illness. With proper treatment, counseling and support, the symptoms may be controllable. However, sometimes medication and treatment aren’t enough.

Mental illness, which generally qualifies as a disability under the Americans with Disabilities Act, can disrupt the workplace. And, it can create a big problem where the employee is a threat to himself or others. Continue reading

Metal whistleCan a person whose job is to ensure that the company follows a particular standard of care; i.e., a watchdog employee, bring an action against the company under New Jersey’s Conscientious Employee Protection Act (CEPA), the state’s whistleblower law?

In case you missed it, earlier this month, the New Jersey Supreme Court answered this question (here) with a resounding yes! The logic is that CEPA is a very broad, remedial statute, and there is nothing in the letter of the law that carves away protections for watchdog employees. Therefore, when an employee “blows the whistle” on an unlawful (or what he/she reasonably believes is an unlawful) employer activity, that employee may have a claim under CEPA — even if the whistleblower is employed as, well, a whistleblower.

Image Credit: By Metal_whistle.jpg: Markus Schweissderivative work: MichaelFrey (Metal_whistle.jpg) [CC BY-SA 3.0], via Wikimedia Commons

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Yesterday, the Americans with Disabilities Act turned 25. To celebrate the 25th anniversary, the EEOC has created a new resource (here), which addresses the state of the ADA, lists important milestones, and offers links to a series of ADA resources.

Save the Family and Medical Leave Act, I get more calls about the ADA from business owners, HR professionals, and decisionmakers, than any other employment law. Continue reading

Chalkboard eraser, Waldorf School, East Lexington MA.jpgBack when I first started this blog, when I believed that my blogging success would translate into Aston Martins and beach homes, rather than “Can you please email me a copy of your FMLA PowerPoint?”, I had a series of “Third Circuit Employment Law 101” posts. Well, I don’t think I’ve done a “101” post for nearly 5 years. Time to break that streak.

Oh, hold on a sec, I need to respond to another PowerPoint-request email…

Continue reading

Nuvola LGBT flag borderless
On Monday, I got into last week’s EEOC ruling that sexual-orientation discrimination is sex discrimination and, therefore, violates Title VII. Yesterday, I took up the First Amendment Defense Act, which has been described by the ACLU as “Indiana on Steroids.”

On Thursday, make way for the Equality Act, according to Chris Johnson at the Washington Blade (here). Continue reading