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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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05 Jun 2017 ‘Hey Boss, F*@& You!’ Profanity-Laced Facebook Tirade Not Enough to Get the Axe

  A recent case out of the Second Circuit Court of Appeals demonstrates yet again the perils of firing an employee based on a seemingly inexcusable Facebook tirade. The matter involved an employee for a catering company who was upset that his supervisor admonished him and others in a “raised, harsh tone” about “chitchatting” with co-workers as guests arrived at a catered event. In response, the employee used his cell phone to make a public post on Facebook that said: “Bob is such a NASTY…

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10 Mar 2017 Supreme Court Nominee Gorsuch Receives ABA’s Highest Rating

  On Thursday evening, March 9, the American Bar Association (ABA) released its much-anticipated evaluation of Supreme Court Nominee Neil Gorsuch to the Senate Judiciary Committee.  After a thorough and detailed review of the candidate’s temperament, integrity, and overall competence, all 14 members of the ABA’s Standing Committee unanimously rated Gorsuch – currently a judge on the Tenth Circuit Court of Appeals – as being “well-qualified,” the highest rating possible.   Getting a seal of approval from the ABA, which is often viewed as aligning…

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30 Jan 2017 Trump Administration Quick Hitters: Acting EEOC Chair Named, Chief of Staff Requests Regulation Freeze, and DOJ Requests Delay in Fifth Circuit Appeal of OT Rule

  It’s only been a week, but the Trump administration has already been busy making its presence felt in the world of labor and employment.   New EEOC Acting Chief   On Wednesday, President Trump appointed current EEOC Commissioner Victoria Lipnic, a Republican, as the Acting Chair of the Commission.  Originally appointed to the Commission by former President Barack Obama in 2010, her term is set to expire in 2020. Lipnic had previously served in a high-level position in the Department of Labor during the…

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14 Dec 2016 A U.S. Supreme Court ADA Showdown Is A-Brewin’: Eleventh Circuit Contradicts Seventh Circuit Regarding Non-Competitive Mandatory Reassignments

  This past week, the U.S. Court of Appeals for the Eleventh Circuit (encompassing Florida, Georgia, and Alabama) reignited an old-fashioned statutory interpretation duel. Ok, it’s not as exciting as the Earps vs. the Clantons at the O.K. Corral, but it certainly has more far-reaching ramifications for employers and employees alike.   The issue: whether, when an employee with a disability cannot perform the essential functions of his or her current job, the Americans with Disabilities Act (ADA) requires mandatory reassignment of minimally qualified individuals…

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04 Nov 2016 Airline Employee’s Fraudulent FMLA Request Ensures His Claim Never Gets Off the Ground

  If I had to guess, there is probably no statute that brings more frustration or gives employers more fits than the Family and Medical Leave Act (FMLA) – with intermittent leave occupying a special pedestal in this pantheon of exasperation. What to do about the employee who seems to always need FMLA right before or after a planned vacation or a three-day weekend? Admittedly, sometimes there’s nothing that can be done. However, in a recent Fourth Circuit opinion, the court saw through Plaintiff’s request…

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21 Sep 2016 The Battle Is Joined: Two New Entrants in the Fight Over New Overtime Rules

  Two new sets of allied combatants have joined the fray looking to overturn the Department of Labor’s (DOL) new overtime regulations and halt the imminent effective date. The DOL’s new rules more than double the salary threshold (to $47,476) for workers to even be considered for the so-called “white collar” exemptions to the Fair Labor Standards Act’s (FLSA) overtime premium requirements and are currently scheduled to take effect Dec. 1.   On Sept. 20, two complaints were filed in the Eastern District of Texas:…

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15 Aug 2016 Fifth Circuit Triples Down on the Legality of Class Action Waivers in Arbitration Agreements

  On August 10, the Fifth Circuit Court of Appeals – for the third time – rejected the National Labor Relations Board’s (NLRB) position that class action waivers in arbitration agreements are invalid under the National Labor Relations Act. In a short opinion, the Circuit said it was bound by its two previous published opinions directly addressing this issue and ruling that such waivers are valid pursuant to the Federal Arbitration Act.    The ruling last Wednesday was the first time the Fifth Circuit has…

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05 Jul 2016 NLRB Hits Ceiling in Continual Push to Expand Scope of Protected Concerted Activity

  Whether the National Labor Relations Board (NLRB) is issuing rulings invalidating employee handbook policies that encourage civil behavior among employees or attempting to get discharged employees reinstated after profanity-laced Facebook rants against their supervisors, the board seems determined to push the limits of what can be considered “protected concerted activity” under the National Labor Relations Act (NLRA). Regardless of whether an employer is a union shop or not, under the NLRA employers may not take adverse action if the employee’s conduct qualifies as protected…

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20 May 2016 New Overtime Rules: All That Glitters Is Not Gold

With apologies to Shakespeare (the above phrase is a slight corruption of his original line from Merchant of Venice, “All that glisters is not gold”), we continue our coverage of the Department of Labor’s (DOL) controversial – to say the least – new overtime regulations. To catch everyone up, earlier this week the DOL issued its final regulations that more than doubled the minimum salary necessary to be considered for the key exemptions from overtime compensation under the Fair Labor Standards Act (FLSA). As of…

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07 Apr 2016 Morbid Obesity Not Necessarily a Disability Under Americans with Disabilities Act

The Eighth Circuit Court of Appeals held this week that obesity in and of itself is not covered by the Americans with Disabilities Act (ADA).  Instead, obesity generally is a physical characteristic and “qualifies as a physical impairment (and thus would be covered under the ADA) only if it falls outside the normal range and it occurs as the result of a physiological disorder.” (Emphasis added.)  Even morbid obesity has to have physiological underpinnings to qualify as a disability, ruled the Eighth Circuit.  Such disorders…

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