Labor & Employment Developments Blog

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. 

The first significant Supreme Court pronouncements on employment law are here and both seem tailored to create further litigation.  The first, decided late last week, is NASA v. Nelson, unanimously reversing a 9th Circuit decision that government employment background check questionnaires violated the constitutional right to “information privacy.” 

You may recall my post from a couple months ago about Brett Favre’s alleged harassment of a New York Jets employee, Jenn Sterger.  The NFL has completed its investigation and has been unable to substantiate any allegations that Favre violated league policies.  However, the commissioner did conclude that Favre failed to cooperate with the investigation and was less than candid so he fined him $50,000, which is pocket change to Favre.  I was not going to bother commenting on this sorry spectacle until I happened to hear ESPN’s “legal analyst” on Sportscenter this morning.  The analyst, who shall remain nameless, expressed the following opinions: 1) Sterger could sue Favre and the Jets, although there might be some statute of limitations issues; 2) Favre could be considered her supervisor because he was higher up the chain in the Jets organization than Sterger; and 3) if Sterger were to file suit, her case would likely get to a jury.  The only question I had after hearing this was how can I get an analyst job at ESPN because I can do better than this.   

As we head into the long weekend, I suspect that very few people contemplate the meaning of Labor Day.

In my last post, I discussed the pros and cons of arbitration of employment disputes, concluding that the pros outweigh the cons. I also noted that the Arbitration Fairness Act, which would ban forced arbitration in employment disputes, is looming on the horizon. I ended with the question: What should you do if the Arbitration Fairness Act passes? As promised, here are a few suggestions.

In the interest of full disclosure, I am a huge proponent of arbitration of employment disputes as beneficial to employers. Frankly, I do not understand why more employers do not use arbitration. After some internet research on the topic, I have identified the following commonly stated pros and cons of arbitration.

Sad news from Connecticut yesterday as another workplace shooting claimed 9 lives.

I’m not going to suggest that it could have been prevented, and in fact I have my doubts that such incidents can be completely prevented in a free society such as ours. Moreover, it would be inappropriate to second guess the company involved based on news stories that may or may not be complete and accurate. Nevertheless, it is timely to consider what steps employers can take to minimize the risk of workplace violence.

According to recent news stories, Mel Gibson is in trouble again. This time because of certain calls that his former girlfriend recorded in which Mel makes several inappropriate comments, including racial slurs, death threats, etc. I know what you’re thinking, “a Hollywood celebrity behaving badly — this is news?” I agree, but within this messy story there is an employment law issue.

The NLRB announced today that the Texas Dental Association has distributed $900,000 in back pay awards to two former employees who were fired in relation to a petition complaining of poor management and unfair treatment.

According to The New York Times, Google is going to begin covering a cost that gay and lesbian employees must pay when their partners receive domestic partner health benefits.