In a recent case, Bresler v. Rock, 2018-Ohio-5138, an employee incongruously argued that an employer’s offer to reinstate his employment in exchange for dismissal of his pending lawsuit was a retaliatory action.  The Ohio Court of Appeals soundly rejected that contention. Rather, employers can continue to negotiate settlements of discrimination allegations and include conditions of dismissal of lawsuits and releases of all claims and courts should not consider it a retaliatory action.

At the age of 60, after working for Anchor Hocking for over 41 years, Darrell Bresler was terminated. Earlier in the year, the company shut down its operations due to financial distress and most of its employees were furloughed. Four employees, including Bresler, were not recalled to work. Bresler’s plant manager contacted him and informed him that his employment was being terminated. He was offered a four-week severance package in exchange for a release of claims.
Continue Reading Employer’s good faith offer to reinstate employee as part of settlement negotiations in exchange for dismissing a lawsuit is not considered retaliation

The Fair Credit Reporting Act (FCRA) requires employers who obtain a consumer report on a job applicant to provide the applicant with a “clear and conspicuous disclosure” that they may obtain such a report (the “clear and conspicuous” requirement) “in a document that consists solely of the disclosure” (the “standalone document” requirement) before procuring the report. Because neither of these requirements are defined in the statute, they have been the subject of almost constant litigation in recent years. Most notably, the 9th Circuit has led the way in finding that an employer’s inclusion of a liability waiver in its disclosure form violates the standalone requirement. Now, in Gilberg v. California Check Cashing Stores, LLC, a panel of the 9th Circuit Court of Appeals has held that an employer’s inclusion of state law mandated requirements in the disclosure form provided to job applicants violates the standalone document requirement despite the fact that they were included in the form in an effort to assist the applicants in understanding all of their rights as it related to the background screen being obtained on them. In short, the panel was not moved by the employer’s argument that its additional disclosure of the applicable state laws “furthers rather than undermines FCRA’s purpose.” To the contrary, the panel held that “the presence of this extraneous information is as likely to confuse as it is to inform” and therefore, it does not further FCRA’s purpose. Instead, the panel noted that the only exception to the standalone document requirement is the one in the statute itself that permits the disclosure and authorization to be combined into a single document.


Continue Reading Ninth Circuit holds that inclusion of state law disclosures violates the FCRA’s “stand-alone” Requirement

On Jan. 25, 2019, the National Labor Relations Board (NLRB) addressed its independent contractor test in a case involving airport shuttle drivers for the franchise, SuperShuttle. The SuperShuttle DFW, Inc. decision overruled the NLRB’s 2014 decision in FedEx Home Delivery, which the Board criticized as incorrectly limiting the significance of a worker’s entrepreneurial opportunity for economic gain in determining independent contractor status.
Continue Reading NLRB overrules Obama-era precedent for independent contractor test

After years of expanding Section 7 rights during the Obama administration, the NLRB earlier this month began reining in the protection afforded to employee complaints in a 3-1 decision in Alstate Maintenance, LLC. In Alstate, a Kennedy International Airport skycap, Trevor Greenidge, refused to assist an arriving soccer team with their baggage and equipment, telling his supervisor, “We did a similar job a year prior and we didn’t receive a tip for it.” When a van carrying the team’s  equipment arrived, airline managers motioned for the charging party and three co-workers to assist. Instead, they walked away and did not return until after baggage handlers from inside the airport terminal had done the bulk of the work. That evening, one of the airline managers called Alstate to complain about subpar customer service, which ultimately resulted in the termination of Greenidge and his three coworkers.
Continue Reading NLRB reverses Obama board trend on expansion Of Section 7 rights

Section 301 of the federal Economic Growth, Regulatory Relief and Consumer Protection Act, which was signed into law on May 24, 2018, amended the Fair Credit Reporting Act (FCRA), effective Sept. 21, 2018, to require consumer reporting agencies (such as those that employers use for applicant and employee background check purposes) to include new language

Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class.

The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to return bank cards to several customers. She alleged, however, that the bank’s reliance on these errors for her termination was really a pretext for age discrimination because other, younger tellers committed the same errors yet were retained.

Continue Reading Sixth Circuit decision shows similarly situated employees must truly be similarly situated in discrimination cases

On Tuesday, August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the issuance of six new opinion letters covering a variety of issues under the FMLA and FLSA. Specifically, the opinion letters address the following issues:

  • “No-fault” attendance policies and roll-off of attendance points under the FMLA
  • Organ donors’ qualification for FMLA leave
  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities
  • Application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform
  • Application of the movie theater overtime exemption to a movie theater that also offers dining services
  • Volunteer status of nonprofit members serving as credentialing examination graders


Continue Reading U.S. Department of Labor issues new opinion letters covering FMLA and FLSA issues

Many people exercise daily, and for Shannan McDonald, her exercise was prescribed by her physician for her genetic disorder.  McDonald, employed as a receptionist for UAW-GM Center for Human Resources (CHR), regularly exercised in her employer’s on-site gym during her lunch break.  Per the collective bargaining agreement that covered her employment, each year CHR permitted employees to elect annually whether to take a 60 minute lunch break or a 30 minute lunch break with two other 15 minute breaks. The election remained in place for the entire year following election. McDonald chose the 30 minute lunch break.
Continue Reading Sixth Circuit holds that employer was not required to extend lunch breaks for exercise as reasonable accommodation

The Obama-era NLRB sometimes gave employers fits with decisions and guidance concerning employer work rules. It was common for the Obama-era Board to strike down fairly common, neutral work rules, often based on the idea that employees might interpret the rules to restrict employee rights. It did not take long for Trump-era NLRB appointees, however, to put their stamp on National Labor Relations Act law (see our article about some early actions by Trump NLRB appointees). The current members of the NLRB and the NLRB General Counsel are clearly inclined to give employers more latitude when drafting work rules. Following are some examples of the NLRB’s change in direction.
Continue Reading More news from the NLRB on work rules

On Wednesday, June 27, 2018, the United States Supreme Court ruled in a 5-to-4 decision that the application of public sector union fees to nonmembers is a violation of the nonmembers’ First Amendment rights. The Court’s decision in Janus v. AFSCME overturns precedent established in a 1977 Supreme Court decision, Abood v. Detroit Board of Education, where the Court allowed the collection of union fees from nonmembers for collective bargaining related costs, excluding lobbying and political expenses. In overturning the decision, the majority in Janus held that Abood was “poorly reasoned” and an “anomaly in…First Amendment jurisprudence.” The court’s decision in Janus will have a long-lasting effect on public sector labor unions and will affect millions of unionized workers across the country.

Continue Reading U.S. Supreme Court rules that public sector unions may no longer collect fees from nonmembers