On March 24, 2017, the United States Court of Appeals for the District of Columbia Circuit in Banner Health System v. NLRB, 851 F.3d 35 (D.C. Cir. 2017) again declined to rule on the National Labor Relations Board’s (“NLRB” or “Board”) position that employers cannot prohibit discussions of matters under investigation absent a specific, case-by-case determination supporting the need for confidentiality. As a result, the Board’s position that employers violate Section 8(a)(1) of the National Labor Relations Act (NLRA) by restricting such discussions absent case-specific evidence that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up” continues in force, with no clear disapproval from the courts. Continue Reading NLRB’s Case-By-Case Scrutiny Standard For Investigative Confidentiality Rules Continues

On March 24, 2017, the U.S. Court of Appeals for the Seventh Circuit ruled that the family of a woman murdered by her Home Depot supervisor at a family event could proceed against her former employer(s) on a theory of negligent supervision, hiring, and retention. In so holding, the Seventh Circuit adopted a broad and novel view of employers’ duty to control managers who engage in criminal activity off the employer’s premises and outside the scope of their employment by abusing their supervisory authority. Continue Reading Seventh Circuit: Negligence Lawsuit May Proceed Against Employer Regarding Supervisor’s Off-Site Murder Of Female Subordinate

Late yesterday, the Seventh Circuit became the first federal appeals court to hold that Title VII’s prohibition on discrimination on the basis of a person’s sex also extends to sexual orientation.

The plaintiff, who is a lesbian, was a part-time adjunct professor at a community college in South Bend, Indiana.  She repeatedly and unsuccessfully applied for full-time teaching positions at the college, and ultimately, her part-time teaching contract was not renewed.  She believed that the college was discriminating against her because of her sexual orientation, and she filed a claim with the EEOC, and later in federal court.  The college moved to dismiss the lawsuit, arguing that she had failed to state a claim on which relief could be granted, relying on a string of cases from the Seventh Circuit and elsewhere holding that sexual orientation is not protected under Title VII.  The district court agreed and dismissed the case.  A three-judge panel of the Seventh Circuit upheld the dismissal.  On further appeal, the full Seventh Circuit took “a fresh look” at its position on the issue, and ultimately decided to overrule its prior precedent. Continue Reading Seventh Circuit Holds that Sexual Orientation is Protected by Title VII

Photo: Chuck Coker via Flickr (CC by ND 2.0)
Photo: Chuck Coker via Flickr (CC by ND 2.0)

Last Thursday, the Massachusetts Supreme Judicial Court (SJC) heard oral arguments in a case that asks whether employers can be required to make accommodations for employees’ off-duty use of medical marijuana.

The case was brought by a woman who suffers from Chron’s disease and who treats the condition with marijuana, as authorized by state law.  (Massachusetts voters passed an initiative in 2012 decriminalizing the possession and use of marijuana for medical purposes.  In 2016, Massachusetts voters passed a measure decriminalizing marijuana for recreational use.  Marijuana is illegal for all purposes under federal law.)  After the plaintiff accepted an entry-level job at a marketing company, she was told that she would need to take a drug test.  Continue Reading Massachusetts Supreme Judicial Court Considers Employees’ Use of Medical Marijuana

Photo: Rusty Clark via Flickr (CC by 2.0)
Photo: Rusty Clark via Flickr (CC by 2.0)

Earlier this month, the Supreme Court announced that it had decided not to hear the case of Gavin Grimm – the transgender student who sued his school district seeking access to the restroom and locker room facilities that correspond to his gender identity.  The Court’s  change in course followed the Trump Administration’s rescission of an Obama-era Department of Education policy on the issue of bathroom access.  Although Grimm’s suit involves public school students, private employers have been keeping a close eye on the case for any implications it may have on the rights of transgender employees in the workplace.  The answer to that question will have to wait. Continue Reading The Problem with Pronouns

Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)
Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)

One of the most problematic areas for employers is the balancing act which occurs between managing employee productivity and attendance while taking care not to tread on entitlement to Family and Medical Leave (“FMLA”) and Americans with Disabilities Act (“ADA”) protections.  Intermittent and unforeseeable absences are at the top of the list of challenges, and one particularly challenging issue is migraine headaches.

Individuals who suffer from migraines know they are usually 1) unpredictable and 2) debilitating.  They often result in employees calling in at the last minute, leaving work midday or being out for days at a time without notice. Continue Reading Are Employee Absences Giving You A Headache?

Photo: Christopher T. Sununu
Photo: Christopher T. Sununu

Yesterday Governor Sununu enacted his first law allowing gun owners to carry concealed loaded guns, without a license – effective immediately.

Prior to the this law, police chiefs and local officials had discretion to decide if someone was “suitable” to carry a loaded gun concealed.  Now, if a person is not prohibited by state or federal law from possessing a gun, he or she can carry it concealed without a license.  This means that an employee, who lawfully possesses a gun, could carry it concealed in her handbag, backpack, briefcase, or jacket, for example.  Some employees may view this new law as permitting them to carry loaded concealed weapons into the workplace.  That is not true. Continue Reading Conceal and Carry: License to Be Armed at Work?

Photo: Mark Goebel via Flickr (CC by 2.0)
Photo: Mark Goebel via Flickr (CC by 2.0)

As we reported in an earlier blog post, employers have been keeping an eye on the ongoing political fights over the rights of transgender persons to use restrooms that correspond to their gender identities.

Yesterday, the Department of Justice (DOJ) and the Department of Education (DOE) issued a joint “Dear Colleague Letter” withdrawing two statements of policy and guidance issued by the Obama Administration relating to transgender students’ access to restroom and locker room facilities.  The prior guidance documents took the position that prohibitions on discrimination “on the basis of sex” under federal law governing education (Title IX), also apply to gender identity, and require schools receiving federal funds to allow transgender students to use the facilities that correspond to their gender identities.  The new letter from the Trump Administration states that the prior guidance did not contain extensive legal analysis, and did not undergo a formal public comment and review process.  The new letter from the DOJ and the DOE also notes that states and local school districts play a primary role in establishing educational policy. Continue Reading The Latest Battle in the “Bathroom Wars”

Photo: Mark Goebel via Flickr (CC by 2.0)
Photo: Mark Goebel via Flickr (CC by 2.0)

With all of the focus on the uncertainty of federal employment regulations, state legislatures have been hard at work on proposed legislation and have flown a bit under the radar. Now is a good time to take a look at some pending bills in New Hampshire which could impact workplaces.  There are a variety of important issues being discussed. Continue Reading New Hampshire Legislature Tees Up Workplace Laws for Debate

Photo: Judge Neil Gorsuch (Public Domain)
Photo: Judge Neil Gorsuch (Public Domain)

Last month, President Trump nominated Judge Neil Gorsuch from the United States Court of Appeals for the Tenth Circuit to fill the vacant seat left by the late Antonin Scalia on the United States Supreme Court.  While Judge Gorsuch’s nomination has been met with both praise and criticism from a divided electorate, it may bring good news to employers wrestling with leave requests under federal disability laws. Continue Reading Supreme Court Nominee’s Record on Disability Leave Favorable to Employers