KMK Law Management Rights Blog

As some readers may have noticed, I have been on a brief hiatus from blogging.  This was primarily due to my real job, practicing labor and employment law, and a much needed vacation.  I am back now and offer you some interesting reading that I came across recently: 

I ran across an interesting debate in a recent issue of the USA Today over the issue of job postings.  Apparently, some employers have been posting jobs with a statement that the unemployed need not apply. 

In a story widely reported in the news last year, the EEOC sued Kaplan Higher Education Corporation, a nationwide provider of postsecondary education, alleging that it engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black job applicants nationwide.  The suit was based on the allegation that since at least 2008, Kaplan had rejected job applicants based on their credit history and that the practice had an unlawful discriminatory impact because of race.  One issue that arose in the case was the proper scope of the class of claimants in pattern or practice suits brought by the EEOC.  Specifically, whether individuals claiming to aggrieved more than 300 days before the filing of the charge that triggered the EEOC’s investigation could be included in the class.  This week, the Court answered that question in the negative, holding that the plain language of Title VII does not carve out an exception for the EEOC to bring untimely claims. 

The NLRB’s interest in social media has been in the news recently and I have commented on it here and here.  The assault on employers’ efforts to manage their employees use of social media as it pertains to the workplace continued this month with two new cases.

The fast food chain Carl’s Jr. was sued this week in a class action brought by California managers who claim they were not paid for expenses incurred while driving for work-related purposes.  The lead plaintiff claims that she regularly drove her personal vehicle to meetings, other restaurants and banks but was not reimbursed for mileage or other expenses.  

It seems that all issues in employment law have their day in the sun and then another and another, etc.  I have noticed in the past couple of weeks that several issues I have commented on have come up again.  In no particular order, here is an update.  

A recent decision from a United States District Court in Maryland may be of interest to employers involved in litigation with the EEOC, or those that may someday be involved in litigation with the EEOC. 

It has been a rough year for employers so far after several adverse decisions from the Supreme Court.  Not wanting to be left out, the Equal Employment Opportunity Commission (EEOC) issued its final rule implementing regulations under the ADA Amendments Act (ADAAA) on March 25, 2011.  The new regulations go into effect on May 24, 2011.  There has been a lot of discussion online about the meaning of the regulations but they are not surprising and are for the most part consistent with the ADAAA itself.  The essence is that employers can forget about challenging a plaintiff’s claim that he or she is disabled in all but the most extreme cases.  As just about everyone previously concluded when the ADAAA became law, disability discrimination cases now turn on the reason for adverse employment action, the interactive process and/or the reasonableness of accommodations.  If you are interested in details, some specifics points from the regulations follow. 

Today, March 22, 2011, the Supreme Court issued its decision in the Kasten v. Saint-Gobain Performance Plastics Corp. case.  The sole issued addressed by the Court was “whether ‘an oral complaint of a violation of the Fair Labor Standards Act’ is ‘protected under [the Act’s] anti-retaliation provision.’”  Given the recent spate of pro-employee decisions, it is hardly surprising that the Court answered the question in the affirmative.  The court began its analysis by noting that the FLSA protects employees who have “filed any complaint.”  The decision by Justice Breyer focuses on the meaning of those three words – filed any complaint.  While he concludes that the words in isolation are open to competing interpretations, consideration of the language in view of its purpose and context permits only one interpretation.  I will spare you the lengthy – some might say tortuous reasoning – and go straight to the holding: 

The Sixth Circuit issued a decision in Lewis v. Humboldt Acquisition Corp. on March 17, 2011 that is based on an interesting anomaly in the Sixth Circuit’s treatment of ADA claims.  Ms. Lewis was a registered nurse who began working at the Humboldt Manor Nursing Home in July 2004.  Sometime in September 2005, she developed a medical condition that “among other things, affected her lower extremities.”  As a result of the condition, Ms. Lewis sometimes used a wheelchair.  Humboldt Manor terminated Ms. Lewis’ employment in March 2006 because of an “outburst” that she had at the nurses station.  Three co-workers testified that she yelled, criticized supervisors and used profanity.  Ms. Lewis and another employee testified that she was upset but did not act inappropriately.  Ms. Lewis alleged that the true reason for her termination was her use of a wheelchair and that Humboldt Manor exaggerated the severity of her behavior to use it as a pretext for disability discrimination.