Health Care Reform – Pending Litigation Cases
Since the Patient Protection and Affordable Care Act (PPACA) was enacted last year, several
state attorneys general and other private plaintiffs have filed lawsuits to repeal it. These lawsuits,
among other issues, challenge the constitutionality of the mandate under PPACA that individuals
purchase health insurance no later than 2014 or face a penalty. This is known as the “individual
mandate.” This alert highlights the most prominent cases which have been decided at the federal
district court level. It is very difficult to predict the eventual outcome of any of these cases. As a
result, plan administrators, employers and insurers should be extremely cautious in making a
decision to rely on any court decision, short of a decision of the U.S. Supreme Court, to avoid
compliance with any part of PPACA. MORE
Experts Give EEOC Range of Views on Leave as a Reasonable
Accommodation
The U.S. Equal Employment Opportunity Commission (EEOC) heard a range of views from a
diverse panel of experts concerning the use of leave to provide reasonable accommodations for
people with disabilities. While the witnesses differed as to some employer and employee
obligations, they agreed on the need for clear and uniform guidance from the EEOC. The meeting,
featuring representatives of employees and employers and EEOC officials, was designed to
explore the use of leave. The Americans with Disabilities Act (ADA) requires reasonable
accommodations when necessary so that people with disabilities can perform the essential
functions of their jobs, unless doing so would constitute an undue hardship to the employer.
Leaves of absence—including those beyond an employer’s permitted number of days off—can
constitute reasonable accommodations. MORE
The NLRB Is Making Clear Its Position Regarding Social Media
Communications
The National Labor Relations Board (NLRB) has issued another complaint (and accompanying
press release) alleging unlawful termination of an employee for posting photos and comments on
Facebook. The complaint, which is similar to other complaints filed by the NLRB in the past
months, alleges that a Chicago area BMW dealership illegally fired an employee after that
individual posted information critical of the dealership. MORE
Supreme Court Unanimously Limits Employers’ Right to Attorneys’ Fees in
Discrimination Cases
In federal cases alleging discrimination, harassment, retaliation and violations of civil rights, when
may a defendant employer recover attorneys' fees? It is long settled that defendants may recover
only when the plaintiff's claims are "frivolous, unreasonable or without foundation." What about
when just some of the claims are frivolous? The Supreme Court answered that question,
unanimously, with Justice Kagan writing the opinion: Section 1988 allows a defendant to recover
reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. Or what is
the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the
portion of his fees that he would not have paid but for the frivolous claim. MORE
Third-Party Contracting for HR Managers Complicated by Export Certification
Requirement
Employers who use staffing companies to provide them with foreign workers face more
complications than ever. These employers must now certify that none of their workers, third party
or otherwise, are given unlicensed access to certain controlled technology or technical data.
MORE
NLRB Permits Use of Giant Inflatable Rats Against Employers with Whom
Unions Have No Labor Dispute
The National Labor Relations Act prohibits unions from inducing strikes or picketing against neutral
employers (also called secondary employers) with whom the unions have no labor dispute, but it
does not prevent unions from engaging in this activity against employers with whom the unions
have the dispute (called primary employers). Where primary and neutral employers work side-byside at a worksite (like a construction project), the Act prohibits unions from picketing the worksite
since doing so embroils neutral employers in a labor dispute over which they have no control.
Where, however, the unions’ actions look more like pure symbolic speech—rather than conduct
that resembles picketing—the limitations of the Act give way to the free speech protections of the
First Amendment. MORE
Immigration Dispatch Supreme Court Immigration Decision Means "Patchwork
Regulation" For Employers
The U.S. Supreme Court's recent decision in Chamber of Commerce of the United States v.
Whiting, which upheld an Arizona statute that sanctioned employers for knowingly or intentionally
employing unauthorized aliens, means that employers with multi-state operations will have to
conform to a patchwork of laws rather than a single, uniform federal standard. It also means that
we can expect many more states to enact such laws. MORE
Public Sector Union Bargaining Rights Reform Winds Its Way Through the
Courts
The battles playing out in Wisconsin, Indiana, Ohio, and Michigan over public sector collective
bargaining rights have dominated the news headlines over the past few months. Opponents of
public sector unionism have argued that eliminating or significantly curtailing public employees’
collective bargaining rights is necessary to balance state budgets across the country. This article
addresses developments in these Midwestern states and possible implications that restricted
collective bargaining rights for public sector employees might have for organized labor as a whole.
MORE