The Employment Lawyer Blog by John F. Buckley IV

EEOC Announces Recent Charge Filing Statistics and Settlements

Posted by John Buckley on Thu, Feb 12, 2015 @ 12:02 PM

John F. Buckley IV, Senior Attorney, National Legal Research Group

    The Equal Employment Opportunity Commission (EEOC) has just reported that in fiscal year (FY) 2014 (Oct. 1, 2013 through Sept. 30, 2014) it received a total of 88,778 private sector discrimination charge filings. Although lower than the record high of 99,947 charges filed in FY 2011, the agency attributed the decrease in part to the government shutdown that took place during the reporting period. EEOC Press Release, Feb. 4, 2015. When charges filed with state fair employment agencies are factored in, there has been a significant increase in discrimination charges filed against employers.

    For the fifth year in a row, allegations of retaliation under all statutes (37,955) outnumbered those of race discrimination (31,073), which until FY 2010 had been the most frequently filed charge since the EEOC became operational in 1965. Following retaliation and race, sex (26,027) and disability discrimination (25,369) were the most frequently filed charges.

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Topics: discrimination, retaliation, statistics, EEOC

EMPLOYMENT LAW: Keeping Employment Policies Apace with Developments in Same-Sex Marriage and Gender Identity Discrimination

Posted by John Buckley on Mon, Dec 29, 2014 @ 14:12 PM

The Lawletter Vol 39 No 10

John Buckley, Senior Attorney, National Legal Research Group

     A periodic review of employment policies for changes in the law is always prudent. In light of the rapidity of recent developments, however, including marriage rights of same-sex couples and prohibitions against discrimination based on sexual orientation and gender identity, counsel for employers face an unprecedented challenge keeping workplace policies compliant in a changing legal landscape.

     Same-sex marriage rights. Recent legislative and judicial developments related to same-sex marriage rights impact workplace rights involving benefits, leave time, and related issues. An employee's same-sex spouse may be entitled to coverage under employer-provided health insurance plans and have rights as the alternate payee, beneficiary, and/or survivor in employee pensions and other retirement benefits. Upon divorce, an employee's spouse may recover an interest in the portion of the employee's pension or other retirement benefit that accrued during the marriage. Upon an employee's death, the surviving spouse may be entitled to receive any wages due the employee. Similarly, under federal and many state laws, an employee is entitled to paid or unpaid leave time to care for a spouse with a serious medical condition or a spouse who is a military servicemember or veteran. Thus, it is essential for employment policies to reflect the current legal definition of "spouse" under federal law and in the employer's particular state(s) of operation.

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Topics: employment law, employment policies, review for currentness

Supreme Court Holds 2012 Recess Appointments to NLRB Invalid

Posted by Gale Burns on Tue, Aug 12, 2014 @ 12:08 PM

The Lawletter Vol 39 No 6

John Buckley, Senior Attorney, National Legal Research Group

     On June 26, 2014, the Supreme Court held that the President lacked authority under the Constitution to fill three of the five seats on the National Labor Relations Board ("NLRB" or "Board") through "recess appointments" made on January 4, 2012, during a three-day break between two pro forma sessions of the Senate. NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)
(Breyer, J., joined by Kennedy, Ginsburg, Sotomayor, and Kagan, JJ.; Scalia, J., concurring in the judgment, joined by Roberts, C.J., and Thomas and Alito, JJ.). The case turned on the precise definition of the term "recess" within the meaning of the Constitution's Recess Appointments Clause ("Clause"). Although the Court acknowledged that the term includes both inter- and intrasession recesses and can apply to vacancies that occur before a recess commences, the January 2012 appointments were nevertheless invalid. The Court explained that the three-day period was too short to constitute a "recess" within the meaning of the Clause, and the pro forma sessions could not be construed a

s recesses, thereby lengthening the period.  Because of the unconstitutionality of the appointment of the three Board members, the NLRB lacked a quorum when it rendered its decision in the case on appeal.

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Topics: legal research, John Buckley, NLRB, constitutional law, Recess Appointments Clause, NLRB v. Canning, no presidential authority, includes intersession and intrasession recesses

EMPLOYMENT DISCRIMINATION: Religious Harassment in Workplace—Cautionary Tale for Employers

Posted by Gale Burns on Thu, Apr 10, 2014 @ 12:04 PM

The Lawletter Vol 39 No 2

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Topics: legal research, John Buckley, The Lawletter Vol 39 No 2, employment, workplace, religious harassment, employer liability, 7th Cir., May v. Chrysler Group, less severe incidents in continuous pattern, hostile work environment, discrimination

EMPLOYMENT LAW: Employment Non-Discrimination Act ("ENDA")

Posted by Gale Burns on Mon, Dec 30, 2013 @ 15:12 PM

The Lawletter Vol 38 No 10

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Topics: legal research, employment law, John Buckley, nondiscrimination, ENDA, S. 815, sexual orientation, gender identity, antidiscrimination protections extended to same-se

The American Taxpayer Relief Act of 2012

Posted by John Buckley on Tue, May 21, 2013 @ 10:05 AM

 John Buckley, Senior Attorney, National Legal Research Group

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Topics: legal research, employment law, John Buckley, The Lawletter Vol 37 No 11, American Taxpayer Relief Act of 2012, extended some Bush-era tax cuts, SS withholding increased, increased credit for employer-provided child-care, education assistance, and transit/carpool benefits, extension of federally funded unemployment compens

EMPLOYMENT LAW UPDATE: Supreme Court Upholds ACA—What Employers Must Do Now

Posted by Noel King on Wed, Jul 18, 2012 @ 17:07 PM

July 19, 2012

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Topics: legal research, employment law, John Buckley, Commerce Clause, individual mandate, Supreme Court, ACA, health insurance coverage, Medicaid expansion, penalty, SBC, Sebelius

EMPLOYMENT LAW UPDATE: Legislation Banning Employer Requests for Social Media Information

Posted by Gale Burns on Wed, Jun 13, 2012 @ 12:06 PM

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Topics: legal research, employment law, John Buckley, Michigan, employer requiring usernames and passwords, Maryland first state to prohibit this practice, similar legislation pending in California, Illinois, Minnesota, federal legislation introduced, Password Protection Act of 2012, Social Networking Online Protection Act ("SNO

Challenges to the Individual Mandate Under the New Health-Care Law

Posted by Gale Burns on Tue, May 15, 2012 @ 11:05 AM

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Topics: legal research, John Buckley, Commerce Clause, PPACA, individual mandate, health-care reform constitutional, health care reform constitutionality

CYBERLAW: Potential Liability for Operating a Website

Posted by Gale Burns on Fri, Feb 3, 2012 @ 16:02 PM

The Lawletter Vol 36 No 7

John Buckley, Senior Attorney, National Legal Research Group

Maintaining a website has become a matter of business necessity for most professional, commercial, and retail establishments.  Despite its undisputed advantages, however, the operation of a website also presents new areas of exposure to liability for its owner or operator.  Fifty percent of businesses now report experiencing between one and five cyber risk incidents, and several recent high‑profile cases have significantly increased interest in a new form of insurance:  Cyber Liability Insurance.  This type of insurance is designed primarily to protect businesses from liability arising from the ownership or operation of a website.  Sources of potential liability include infringement, privacy, defamation, reliance, or accessibility. 

In addition to these sources of liability, a recent case involving a popular social media website demonstrates that there are other potential sources of liability for operating a website.  In late 2011, settled a lawsuit filed by a victim of sexual assault and agreed to screen its members against state and national sex offender registries.  See Doe v. (Cal. Super. Ct. filed Apr. 13, 2011).

Although the potential for liability is not in dispute, there is some debate about the degree of care a social media site must exercise.  Some experts believe that the accessibility of sex offender registries will create a duty on the part of other sites to screen users, while other experts believe that made a mistake in agreeing to screen users and that the screening itself may give rise to liability.  Nevertheless, eHarmony and Zoosk have since indicated that they, too, would be enhancing security for members and screening for sex offenders.

Although this lawsuit did not establish any legal precedent, it does underscore the trend toward increasing recognition of website liability.  On the other hand, it may be the case that unnecessarily exposed itself to liability for the voluntary screening.  Should a sex offender make it through the screening process and cause injury to another user, it could be significantly more difficult for to argue in a subsequent lawsuit that it does not have a duty to screen for not only sex offenders but other potentially dangerous users as well.  Thus, the case has significance beyond the social media context, in that it demonstrates the difficulty website operators face in establishing policies calculated to reduce liability.

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Topics: legal research, John Buckley, The Lawletter Vol 36 No 7, cyberlaw, cyber liability insurance for infringement, privacy, defamation, reliance, accessibility, Doe v.

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