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Brian Hall

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Brian Hall partners with employers of all sizes – from small family-owned businesses to multi-national Fortune 500 companies – to help them effectively manage the issues they face on a daily basis in an increasingly regulated workplace. Brian focuses much of his practice on educating and assisting employers in their use of 21st century technology in their workplaces and its impact on cybersecurity, employee privacy, and trade secret protection.

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As he tends to remind us on a regular basis, Donald Trump won the presidential election back in November 2016. But that doesn’t mean that National Labor Relations Board (NLRB) policy turns on a dime. The Board has only three members at this time with Member Philip Miscimarra (R) in the role of Acting Chairman still outnumbered by Members Pearce (D) and McFerran (D). With confirmations of even cabinet level nominations still pending, it could be well into 2018 before a full complement of Board Members are in place and the Republicans take the majority.

Although the Board’s recent decision in Dish Network, LLC probably would have yielded the same result with a full Trump Board, Acting Chairman Miscimarra’s concurring opinion likely signals a future relaxing of the Board’s standards for evaluating whether certain employer policies and employment agreements violate employee Section 7 rights under the National Labor Relations Act (NLRA). In Dish Network, the Board concluded that the employer’s mandatory arbitration policy and agreement violated Section 8(a)(1) of the NLRA. Following its jurisprudence from prior cases decided during the Obama Administration, the Board concluded that the arbitration agreement constituted an 8(a)(1) violation because it “specifies in broad terms that it applies to ‘any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s application for employment, employment and/or termination of employment, whenever and wherever brought.’” …
Continue Reading NLRB’s Dish Network decision: A sign of things to come for employer arbitration agreements?

In November 2016, a Boeing employee experiencing difficulty formatting an Excel spreadsheet. Not realizing that hidden columns included birth dates and social security numbers for 36,000 Boeing employees, he emailed the spreadsheet to his wife, who was not a Boeing employee, so she could help. This seemingly innocent act prompted Boeing to launch an investigation …

Rejecting the EEOC’s position that an employer must reassign a qualified individual with a disability to a vacant position as a reasonable accommodation so long as the individual was minimally qualified for the position, the 11th Circuit on Dec. 7, 2016 held that even disabled workers in need of a reasonable accommodation must compete with other qualified employees for the vacancy. In EEOC v. St. Joseph’s Hosp., Inc., the plaintiff was a nurse who needed a cane for mobility. Because the cane posed a safety hazard in the psychiatric ward where she worked, she was given the opportunity to apply for other jobs, but was not given any preference due to her disability. When she did not obtain any other position at the hospital, she was terminated and the EEOC brought suit on her behalf.

After a jury trial resulted in a defense verdict, the trial court entered an injunction order requiring the hospital to mediate, which failed to result in reinstatement. On appeal, the 11th Circuit expressly addressed the question, “Does the ADA mandate noncompetitive reassignment?” The court concluded that the ADA does not require such preferential treatment of the disabled. In reaching this conclusion, the court relied on the statutory language that includes “reassignment to a vacant position” as part of a non-exhaustive list of items that the term reasonable accommodation “may include.” According to the court, the use of the word “may” implies that reassignment will be reasonable in some circumstances but not others.
Continue Reading Eleventh Circuit rejects EEOC position regarding reassignment as a reasonable accommodation

Posted in EEO

A special thanks to Adam Bennett for his assistance with this article.

An Ohio federal court in Longoria v. Autoneum N. Am., Inc. has held that a Mexican-American production supervisor who was born in Texas could not pursue a claim that he was discriminated against based on his belief that his employer perceived him to be of Mexican national origin. Noting the “widespread failure” of similar claims under Title VII and the fact that Ohio courts generally follow Title VII when evaluating the analogous Ohio law, the court held that claims of perceived national origin discrimination are not cognizable under Ohio law. The court also rejected Longoria’s claims of race discrimination and retaliation on the merits.
Continue Reading Ohio federal court rejects perceived national origin discrimination claim

Posted in EEO

In 2011, the U.S. Supreme Court in Staub v. Proctor Hospital first endorsed the “Cat’s Paw” theory of liability in a USERRA case. Derived from an Aesop Fable, the Court held that an employee termination based on information from a supervisor with discriminatory or retaliatory intent can provide the basis for employer liability even if the biased supervisor did not participate in the adverse employment decision. Following up on this decision, federal courts began applying the theory to Title VII and other federal discrimination laws. Last week’s 2nd Circuit decision in Vasquez v. Empress Ambulance Service, Inc., took the “Cat’s Paw” theory one step further when it upheld an employer’s liability under Title VII when the adverse employment decision was influenced by the retaliatory intent of a low level co-worker who had no supervisory responsibilities.
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Continue Reading 2nd Circuit “Cat’s Paw” decision highlights importance of employer investigations before termination

Temperatures across the United States are starting to heat up. Employers must be cognizant of the impact these rising temps have on employees who work outside.

First things first. The National Oceanic and Atmospheric Administration (NOAA) put together the following list of symptoms of heat illness and first aid solutions:

  • Sunburn: Redness and pain.

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As our sister blog, Technology Law Source has reported, on May 11, 2016, President Obama signed into law the Defending Trade Secrets Act (DTSA), which creates a federal trade secret misappropriation cause of action. As noted, businesses have a lot to consider in deciding whether to pursue this new cause of action in federal court when the security of their trade secrets are threatened. Because the DTSA does not pre-empt state laws protecting trade secrets, however, if a federal forum is otherwise appealing, there really is no reason not to pursue a DTSA cause of action.

Employers will be particularly interested in knowing that the DTSA includes an immunity from criminal and civil liability for employees who disclose their employers’ trade secrets if:

  • the disclosure is made in confidence to a federal, state, or local government official, directly or indirectly, or to an attorney solely for the purpose of reporting a violation of law;
  • it is made in a complaint or other document filed under seal in a lawsuit or other proceeding.

The DTSA also permits an individual who files a lawsuit against his or her employer alleging retaliation for reporting a suspected violation of law to disclose the employer’s trade secret to an attorney and use it in a court proceeding if the document containing the trade secret is filed under seal and in response to a court order.
Continue Reading Employers wanting to take full advantage of the Defending Trade Secrets Act should consider including immunity notice in all new and updated confidentiality agreements

Earlier this week, the EEOC issued new guidance addressing what it described as common issues it continues to see in discrimination charges filed under the Americans with Disabilities Act. This new guidance provides nothing new that has not already been included in its Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, but does highlight, among other issues, the EEOC’s view that the ADA requires employers to:…
Continue Reading EEOC issues new guidance on employer-provided leaves as a reasonable accommodation

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus…

2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.

1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement

The Department…