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    The Employment Lawyer Blog by John F. Buckley IV

    Gale Burns

    Recent Posts

    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

    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, Match.com 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. Match.com (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 Match.com 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 Match.com 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 Match.com 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 Match.com 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. Match.com

    EMPLOYMENT LAW: Supreme Court Upholds Arizona Illegal Workers Law Against Preemption Challenge

    Posted by Gale Burns on Mon, Jan 23, 2012 @ 16:01 PM

    January 24, 2012

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    Topics: legal research, employment law, John Buckley, Legal Arizona Workers Act, sanctions against employers knowingly hiring undoc, E-Verify to check legal status, federal court challenge to Act, U.S. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, federal Immigration Reform and Control Act not pre

    EMPLOYMENT LAW: New NLRB Rule Mandates Posting of Employee Union Rights

    Posted by Gale Burns on Wed, Oct 12, 2011 @ 10:10 AM

    December 23, 2011

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    Topics: employment law, John Buckley, NLRB, legal resesarch, posting of employee rights, mandate, effective Nov. 14, 2011, right to organize a union and bargain collectively, application to employer covered by National Labor, criteria at 29 C.F.R. § 104.204 table, right to bring formal charges against employer for, six-month statute of limitations

    EMPLOYMENT LAW: Accommodating Employees' Religious Observances and Practices

    Posted by Gale Burns on Fri, Jun 3, 2011 @ 10:06 AM

    June 7, 2011

    John Buckley, Senior Attorney, National Legal Research Group

    Title VII makes it unlawful for an employer to "discharge any individual, or otherwise discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). "Religion" includes "all aspects of religious observance and practice, . . . unless an employer demonstrates that he is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the . . . employer's business."  Id. § 2000e(j).  Thus, it is unlawful for an employer not to make reasonable accommodations for an employee's religious practices, unless doing so would impose an undue hardship.  Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 & n.1 (1986).

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    Topics: legal research, employment law, John Buckley, Title VII, 42 U.S.C. § 2000e, reasonable accomodation, religion, undue hardship, Maroko v. Werner Enterprises, de minimis burden

    EMPLOYMENT DISCRIMINATION: Supreme Court Applies Proximate Cause Analysis to USERRA "Cat's Paw" Case

    Posted by Gale Burns on Tue, May 24, 2011 @ 11:05 AM

    May 6, 2011

    John Buckley, Senior Attorney, National Legal Research Group

    If an employee's supervisor performs an act motivated by antimilitary animus and if that act is a proximate cause of an ultimate adverse employment action, then the employer is liable under the Uniformed Services Employment and Reemployment Rights Act ("USERRA").  So the Supreme Court recently held in a case in which a U.S. Army reservist relied on the "cat's paw" theory of liability.  Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011).  A "cat's paw" case is one in which a plaintiff employee seeks to hold his or her employer liable for the discriminatory animus of a supervisor who did not make the ultimate employment decision but who nonetheless influenced that decision.  In applying a tort "proximate cause" analysis to the case, the Court reversed the Seventh Circuit's holding that a court cannot admit evidence of a nondecisionmaking supervisor's animus unless it has first determined whether a reasonable jury could find that the supervisor exerted a "singular influence" over the ultimate decisionmaker.

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    Topics: legal research, employment law, John Buckley, Supreme Court, Staub v. Proctor Hospital, proximate cause, Uniformed Services Employment and Reemployment Rig, cat's paw case

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