Labor & Employment Developments Blog

Yesterday, the Supreme Court issued its long awaited decision in American Express v. Italian Colors Restaurant. 

Now that summer is here, many companies have brought in the annual crop of summer interns.  It is likely that at least some of these interns are unpaid, working for the privilege of gaining experience or a foot in the door that might lead to a paying position.  A Federal District Court in Manhattan ruled this week that Fox Searchlight Pictures violated federal and New York minimum wage laws by not paying production interns. What does this mean for employers?  

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit struck down a National Labor Relations Board (“NLRB”) rule requiring both union and non-union employers to display posters informing employees of their right to form a union and engage in other concerted activity.

On March 5, 2013, Sen. Tom Harkin, D-Iowa, and Rep. George Miller, D-Calif., introduced legislation that would raise the federal minimum wage.  If enacted, the recently-proposed Fair Minimum Wage Act would amend the Fair Labor Standards Act to raise the federal minimum wage to $10.10 per hour over three years.  The increase would be accomplished by establishing a minimum wage of $8.20 per hour on the first day of the third month after enactment - an increase of 95 cents over the current federal minimum wage - followed by a minimum wage of $9.15 per hour one year after the initial bump and then $10.10 per hour a year later.

In addressing a disability discrimination claim under the ADA, the Eleventh Circuit ruled this past week that an indefinite leave of absence does not constitute a reasonable accommodation.

Demonstrating the NLRB’s increased focus on limiting employer confidentiality rules, a three member panel of the NLRB recently ruled in DirecTV U.S. DirecTV Holdings LLC, 359 NLRB No. 4 (January 25, 2013) that four work rules maintained by DirecTV were unlawful restrictions on employees’ Section 7 rights and that the employer did not repudiate the rules. 

The recently released 2012 EEOC enforcement statistics indicated an overall decrease in charges and increase in damages paid by employers.  Notably, for the second consecutive year, the EEOC reduced its pending inventory of private sector charges by 10% from fiscal year 2011, bringing inventory to 70,312.  However, the EEOC obtained the largest amount of monetary recovery in 2012, totaling $365.4 million.  Leading the states in originating charges was Texas at 9.0% of charges filed nationally, followed by Florida (8.0%) and California (7.4%).   

As the FMLA celebrates its 20^th birthday this February, social media continues to be an increasingly important resource for employers in combating frivolous FMLA interference and retaliation charges by former employees. 

The D.C. Circuit holds that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional, arguably undermining the precedential value of controversial decisions  of 2012. (Noel Canning v. NLRB, January 25, 2013.)   

There have been a couple of interesting developments this week in labor and employment law.  First, some may recall that I posted earlier this summer about the employment practice of refusing to consider the unemployed for open positions.  I mentioned at the time that a bill had been introduced, the Fair Employment Act of 2011 (H.R. 1113), that would amend Title VII to add “unemployment status” to the list of protected classes.  Employment Law Matters reports that the effort to pass such a law continues: