High School Programs Employment Law Top Ten Developments of the Year
By: Chris Vrountas
Now that 2011 has ended, it's a good time to reflect on the employment law lessons and developments that occurred over the past year. The following provides what we believe are the Top Ten of some of the major developments from 2011.
10--Transgender Equal Rights in Massachusetts: Massachusetts Governor Deval Patrick signed a new transgender equal rights bill, making Massachusetts the sixteenth state to prohibit discrimination based on gender identity. The bill goes into effect on July 12, 2012.
9--New NLRB Poster Requirement: The NLRB propounded new regulations that would require employers to display a poster setting forth the rights and protections under the National Labor Relations Act for the workers’ right to engage in union activities. Unless the regulations are rescinded or otherwise blocked, all employers must post such notice by April 30,2012.
8-- Connecticut Mandates Paid Sick Leave: Connecticut will become the first state to require certain employers to provide paid sick leave when a billed signed July 5, 2011, goes into effect January 1, 2012. Employers that employ 50 or more individuals in the state will be required to provide certain employees with 1 hour of paid sick leave for every 40 hours worked. Accrued hours may carry over to following calendar years, but may never exceed 40 in any year.
7--Supreme Court Holds States May Require Employers to Use E-Verify: The U.S. Supreme Court ruled in that states (and in particular Arizona under its new immigration enforcement law) may require employers to use “E-Verify” to determine the legal status of their employees. “E-Verify” is an internet-based federal system that permits employers to check the work status of their employees. The Court rejected the argument that FIRCA impliedly preempts the Arizona statute. See Chamber of Commerce v. Whiting,
6--NLRB rules that some social media comments are protected by law: The NLRB ruled that employers may not terminate employees criticizing the terms of their employment or their working conditions using Facebook under certain circumstances. But not any posting about an employer constitutes protected conduct. Posting confidential business or client information is not protected conduct, and an employee posting such information may be subject to termination. Employees also may not defame management or the company.
5—Federal law does not require accommodation for “work Life” balance: The EEOC’s class action claim for sex discrimination against Bloomberg, L.P. failed in the Southern District of New York when Judge Loretta A. Preska dismissed the class action alleging a “pattern of discrimination” and emphasized that “the law does not mandate ‘work life balance.’” As Judge Preska explained, “In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences.”
4—Retaliation against those in claimant’s “zone of interest” unlawful: The U.S. Supreme Court extended the anti-retaliation protections of Title VII to third parties within the “zone of interest” of a complaining employee. The Court held in an 8 – 0 decision that the purpose of Title VII is to provide broad protection against discrimination to employees and that this protection extends to third parties who are retaliated against in an effort to injure the party complaining of discrimination. See Thompson v. North American Stainless.
9--New NLRB Poster Requirement: The NLRB propounded new regulations that would require employers to display a poster setting forth the rights and protections under the National Labor Relations Act for the workers’ right to engage in union activities. Unless the regulations are rescinded or otherwise blocked, all employers must post such notice by April 30,2012.
8-- Connecticut Mandates Paid Sick Leave: Connecticut will become the first state to require certain employers to provide paid sick leave when a billed signed July 5, 2011, goes into effect January 1, 2012. Employers that employ 50 or more individuals in the state will be required to provide certain employees with 1 hour of paid sick leave for every 40 hours worked. Accrued hours may carry over to following calendar years, but may never exceed 40 in any year.
7--Supreme Court Holds States May Require Employers to Use E-Verify: The U.S. Supreme Court ruled in that states (and in particular Arizona under its new immigration enforcement law) may require employers to use “E-Verify” to determine the legal status of their employees. “E-Verify” is an internet-based federal system that permits employers to check the work status of their employees. The Court rejected the argument that FIRCA impliedly preempts the Arizona statute. See Chamber of Commerce v. Whiting,
6--NLRB rules that some social media comments are protected by law: The NLRB ruled that employers may not terminate employees criticizing the terms of their employment or their working conditions using Facebook under certain circumstances. But not any posting about an employer constitutes protected conduct. Posting confidential business or client information is not protected conduct, and an employee posting such information may be subject to termination. Employees also may not defame management or the company.
5—Federal law does not require accommodation for “work Life” balance: The EEOC’s class action claim for sex discrimination against Bloomberg, L.P. failed in the Southern District of New York when Judge Loretta A. Preska dismissed the class action alleging a “pattern of discrimination” and emphasized that “the law does not mandate ‘work life balance.’” As Judge Preska explained, “In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences.”
4—Retaliation against those in claimant’s “zone of interest” unlawful: The U.S. Supreme Court extended the anti-retaliation protections of Title VII to third parties within the “zone of interest” of a complaining employee. The Court held in an 8 – 0 decision that the purpose of Title VII is to provide broad protection against discrimination to employees and that this protection extends to third parties who are retaliated against in an effort to injure the party complaining of discrimination. See Thompson v. North American Stainless.
3--Decision in Wal-Mart v. Dukes Defines Commonality Requirement for Class Actions: Although the U.S. Supreme Court held 9-0 that a class of over one and a half million plaintiffs (current and former female employees of Wal-Mart) was improperly certified, the Court was split 5-4 in how it reached this decision. The majority concluded the class lacked commonality under the Federal Rules of Civil Procedure for class certification as the allegation of a “corporate culture” did not provide enough of a common issue of fact to support a class of thousands of employees claimed to have been discriminated by hundreds of different supervisors who were not governed by any discriminatory policy. See Wal*Mart v. Dukes. By contrast, the Court did uphold a plaintiffs’ class action verdict against the City of Chicago based on the disparate impact of a written examination used to select firefighters for promotion. See Lewis v. City of Chicago.
2--Supreme Court Upholds Waiver of Right to Class Action: The U.S. Supreme Court upheld an arbitration agreement and a waiver of the right to class action in AT&T’s consumer agreements. In doing so, the Court held that the Federal Arbitration Act (FAA) not only favors arbitration, but also to disfavors class action proceedings. See AT&T Mobility LLC v. Concepcion.
1-Healthcare Debate Rages on Long Road to Supreme Court: Whether the mandate for people to purchase health insurance amounts to an appropriate regulation of inter-state commerce or an unconstitutional assertion by Congress of the police power reserved to the states is the essential question that will eventually be answered by the U. S. Supreme Court. For now, the decisions are split, with the 4th and 6th Circuits dismissing challenges to the federal healthcare law while the 11th Circuit and a single federal district court in Pennsylvania ruling the law an unconstitutional assertion of federal power.
2--Supreme Court Upholds Waiver of Right to Class Action: The U.S. Supreme Court upheld an arbitration agreement and a waiver of the right to class action in AT&T’s consumer agreements. In doing so, the Court held that the Federal Arbitration Act (FAA) not only favors arbitration, but also to disfavors class action proceedings. See AT&T Mobility LLC v. Concepcion.
1-Healthcare Debate Rages on Long Road to Supreme Court: Whether the mandate for people to purchase health insurance amounts to an appropriate regulation of inter-state commerce or an unconstitutional assertion by Congress of the police power reserved to the states is the essential question that will eventually be answered by the U. S. Supreme Court. For now, the decisions are split, with the 4th and 6th Circuits dismissing challenges to the federal healthcare law while the 11th Circuit and a single federal district court in Pennsylvania ruling the law an unconstitutional assertion of federal power.
About the Author:
Christopher T. Vrountas chairs the Employment Litigation and Counseling Group as well as the Food and Hospitality Practice Group at Nelson Kinder + Mosseau PC. Chris is a member of the New Hampshire Lodging and Restaurant Association as well as the Academy of Hospitality Industry Attorneys. He and the firm are “preferred providers” of legal services to the members of the NHLRA. Chris regularly publishes in the NHLRA’s “The Dish” and edits the firm’s LegalBites blog which can be found at www.nkms.com/legalbites/ and which covers employment and other legal issues affecting the hospitality industry.
Christopher T. Vrountas chairs the Employment Litigation and Counseling Group as well as the Food and Hospitality Practice Group at Nelson Kinder + Mosseau PC. Chris is a member of the New Hampshire Lodging and Restaurant Association as well as the Academy of Hospitality Industry Attorneys. He and the firm are “preferred providers” of legal services to the members of the NHLRA. Chris regularly publishes in the NHLRA’s “The Dish” and edits the firm’s LegalBites blog which can be found at www.nkms.com/legalbites/ and which covers employment and other legal issues affecting the hospitality industry.
