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Keeping You Posted: June



The D.C. Circuit Court of Appeals has vacated (i.e. essentially killed) the National Labor Relations Board’s (NLRB) controversial “mandatory posting” rule which would have required approximately six million employers to post a notice advising its employees of their rights under the National Labor Relations Act (NLRA). This proposed posting rule has been looming over employers’ heads since its introduction by the NLRB, was initially scheduled to take effect back in August, 2012. In its ruling, the appellate court found that the NLRA guaranteed employers and unions the “right not to speak” and that by compelling employers to post the notice, that right was infringed upon. On its website, the NLRB has released a statement in response to this win for employers: “The DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employees rights under the [NLRB]. [. . .] There is no new deadline for the posting requirement at this time.” (emphasis added).


The NLRB took another blow on May 16, 2013 when the U.S. Court of Appeals for the Third Circuit became the second federal appellate court to rule that President Obama’s recess appointments to the Board were unconstitutional. Both this decision and the D.C. Circuit’s January 25, 2013 decision limit the president’s recess appointment power to breaks between sessions of Congress, rather than breaks during sessions.

Title VII’s Family Circle

Of note is a recent case handed down from the U.S. Court of Appeals for the Third Circuit, which held a family member/employee of a family-run business was not an “employee” under Title VII. The terminated employee served as the vice-president of the company. After there was a dispute with other family-officers over religious beliefs, the family terminated the employee. The employee sued for religious discrimination and hostile work environment under Title VII. Even though the employee had a written employment agreement, the Third Circuit determined, based on EEOC guidelines, that, as a shareholder, director, and corporate officer, the employee had authority and rights to control the business. Therefore, the employee failed to prove he was actually an “employee” under Title VII and was not entitled to invoke its protections.

Employment Apps

The social media revolution has been a thorn in employers’ side when managing their employees’ ability to post, link, chat, or express their every thought online. Well, there just so happens to be a new mobile device application (“app”) designed to prevent employees from tweeting messages which may otherwise be grounds for an employer to terminate the employee. Hopefully, the app will curtail the amount of potential bad press for companies, which is typically out of their control. The FireMe! app tracks a Twitter user’s accounts and warns them by email if they have tweeted a comment that could result in potential termination. The FireMe! app categorizes negative tweets into four categories, “haters,” “horrible bosses,” “sexual intercourse,” and “potential killers” – yes, a little extreme.

The FireMe! app, although designed with good intentions – we hope – may be a doubled-edge sword for employers. While the app does encourage employees to take a more responsible approach to the content of their Tweets, it could also result in employees posting even more nasty and offensive comments, in hopes of beating their previous FireMe! score – the employee’s percent chance of being fired based on the context of the Tweet.

Supreme Court Denies Review of “Continuing Violation” Doctrine 

Hostile work environment” is probably a buzz word which most employers (and its employees) are fairly familiar. A “hostile work environment” generally encompasses a series of discriminatory and/or harassing incidents over a particular amount of time. Therefore, key to a hostile work environment claim is the “continuing violation” doctrine. This doctrine allows a plaintiff to allege discrimination and/or harassment outside of Title VII’s statute of limitations period. The continuing violation doctrine was approved in the 2000 U.S. Supreme Court case, National Railroad Passenger Corp. v. Morgan.

However, there is a split amongst the federal courts as to whether the continuing violation doctrine applies to all of an employer’s alleged systemic violations. The First, Sixth, and Ninth Circuits continue to apply the doctrine where an employer maintains a discriminatory policy or practice that is enforced through individual “discrete” acts. Conversely, the Second, Eighth, and Tenth circuits have interpreted Morgan to mean the continuing violation doctrine cannot be applied to alleged “discrete acts” of discrimination, such as termination, failure to promote, denial of transfer, or refusal to hire outside of the limitations period. These three circuits instead hold that each “discrete act” constitutes a separate actionable employment practice which starts a new limitations period for filing Charges.

Unfortunately, the U.S. Supreme Court denied review of a Second Circuit decision on this issue and will not clarify this split in the federal circuits’ interpretation. Should employers find themselves in a lawsuit alleging “hostile work environment,” they must be prepared to deal with the major discrepancies on how to apply this developing doctrine.


The Equal Employment Opportunity Commission (EEOC) filed, and immediately settled, its first ever lawsuit alleging genetic discrimination under the Genetic Information Nondiscrimination Act (GINA). GINA, the newest federal statute creating a protected class, became effective in 2009, and prohibits employers from discriminating against employees or applicants because of their genetic information (including family medical history) and restricts employers from requesting such information. As one of the six national priorities identified by the EEOC’s 2012-2016 Strategic Enforcement Plan, the Commission is heavily addressing emerging and developing issues in equal employment law, which includes genetic discrimination.

EEOC/ADA Publication

The Equal Employment Opportunity Commission (EEOC) recently released four revised guidelines on protection against disability discrimination, pursuant to the goal of the EEOC’s 2012-2016 Strategic Enforcement Plan to provide up-to-date guidance on the requirements of antidiscrimination laws. “Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability,” said EEOC Chair Jacqueline A. Berrien. “Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the Americans with Disabilities Act (ADA), the EEOC often is asked questions about how the ADA applies to these conditions.”

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