EEOC Regional Attorney Makes Controversial Remarks About Conciliation

Following the Supreme Court's grant of cert to decide the extent to which the EEOC's statutory obligation to engage in conciliation is subject to judicial review, the Regional Attorney for the EEOC's Chicago Office recently made some controversial remarks to Law360, as reported here, including that employer challenges to the sufficiency of EEOC's conciliation efforts are just an excuse to run up billable hours.

--Jonathan Nadler

--Jon Nadler

Noel Canning Fallout Continues

As discussed here, the Supreme Court's ruling in Noel Canning is already causing the Board to spend time re-evaluating -- and, in almost every case, reaffirming -- hundreds of decisions nullified by the Supreme Court's decision.

In the meantime, until reaffirmed by the Board, nullified Board decisions that announced changes in the law are no longer in effect. For example, an ALJ recently ruled that the Board's Noel-Canning-era decision that dues-checkoff provisions survive expiration of a CBA is no longer valid, and therefore dismissed charges against an employer under that theory.

However, because the ideological composition of the Board remains unchanged, most of those decisions will be reaffirmed.

--Jonathan Nadler

--Jon Nadler

EEOC Challenging Employer Wellness Programs

The EEOC has announced it is suing an employer over its employee wellness program, alleging that the manner in which the program was operated violated the ADA.  In particular, the EEOC alleges that participation was mandatory, and required "medical examinations" and made medical "inquiries" of employees.  EEOC alleges that when one employee objected, she was made to pay the full cost of her medical benefits, and later was fired.

--Jonathan Nadler

--Jon Nadler

EEOC Continues to Take Aggressive Litigation Position, Seeks Punitive Damages

The EEOC announced today that it plans to aggressively pursue a claim for punitive damages against New Prime, Inc., a large trucking firm, for violating Title VII by maintaining a policy providing female trainers for female drivers/applicants, now that a federal court has agreed that the employer's policy was unlawful.  The EEOC's press release states that the employer established the policy in an effort to prevent sexual harassment, following a prior harassment claim involving a female driver trainee.

--Jonathan Nadler

--Jon Nadler

NLRB Obtains Section 10(j) Injunction -- Improper Legal Standard Applied?

The NLRB has announced that it has obtained an injunction under Section 10(j) of the NLRA against Southern Bakeries, LLC.  This is the most recent example of federal courts applying a unique and improperly lenient legal framework to injunction requests by the NLRB -- one that is much more deferential to the party seeking the injunction -- instead of the general standard that the Supreme Court has indicated should apply in cases such as Winter v. NRPC.  To date the Supreme Court has declined to resolve this issue in context of Section 10(j) injunctions.

--Jonathan Nadler

--Jon Nadler

NCAA, O'Bannon Reach Agreement on Details of Injunction

In a story published here, CBS Sports is reporting that after seeking clarification from the court, the NCAA and the plaintiffs in the O'Bannon antitrust case have reached an agreement that the requirements of the court's injunction will go into effect on August 1, 2015, for the 2016-17 year, apparently to avoid difficulty implementing these changes mid-year.

--Jonathan Nadler

Reasonable Accommodation: DC Circuit Reminds Employers That Case-by-Case Approach Required

The DC Circuit issued a decision today reminding employers that in determining whether an accommodation is "reasonable" under the ADA, past practice is important.  Even an accommodation that appears unreasonable on its face, such as a so-called "maxi flex" schedule, may be deemed reasonable if the employer lived with it in the past.

The decision is here

--Jonathan Nadler

--Jon Nadler

U.S. District Court Ruling Overturns NCAA Ban on Athlete Payments

A U.S. District Court in Oakland, CA ruled that the NCAA must permit college athletes to make money from their images, likenesses, and names. Interestingly, the plaintiff is a 41 year old former UCLA college player who is now a car salesman. He discovered that his likeness was being used in a video game without granting his consent or receiving compensation.

http://www.nytimes.com/2014/08/09/sports/federal-judge-rules-against-ncaa-in-obannon-case.html

--Jonathan Nadler

--Jon Nadler