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What I've Been Reading This Week: End of the Year Edition


With Christmas being midweek this year, I spent little time in the office and therefore away from my work computer and with less downtime to read through articles (given some last minute shopping.)  However, given that this is the last "What I've Been Reading This Week" for 2019, I wanted to take a moment to recognize a few of the landmark cases, bills, and developments in the labor and employment law field over the past twelve months.

The U.S. Supreme Court was rather busy, issuing several notable decisions including New Prime, Inc. v. Oliveira (in which the Court held that independent contractors in the transportation industry may not be forced into mandatory arbitration).  As well, at the start of October, the Court heard oral arguments in three employment discrimination claims that asked the Court to consider extending the protections of Title VII to cover sexual orientation.  And to wrap up the year, the Court heard oral arguments in Intel Corp. Investment Policy Committee v. Sulyma, a case that centers on a three year statute of limitations question in regard to the Employee Retirement Income Security Act ("ERISA").

The U.S. Supreme Court was not the only court to issue prominent decisions this year.   In Parker v. Reema Consulting Services, Inc., the Fourth Circuit Court of Appeals held that a false rumor that an employee slept with her supervisor for a promotion could lead to Title VII liability against the employer for discrimination "because of sex."  (In October, the Supreme Court declined to take the case on appeal.)  The Seventh Circuit Court of Appeals issued a ruling in Construction and General Laborers' Union No. 330 v. Town of Grand Chute which held that a local ordinance that banned "Scabby the Rat" was lawful.  As well, the Seventh Circuit also held in Richardson v. Chicago Transit Authority that obesity is not a disability under the Americans with Disabilities Act.  The Ninth Circuit Court of Appeals issued a ruling in Vazquez v. Jan-Pro Franchising International, Inc. in which it held that California's ABC Test applies retroactively.  The Court of Appeals of Colorado, Division IV issued an interesting decision in Nieto v. Clark's Market, Inc. and found that forfeiture of accrued but unused vacation time is lawful when an employee is terminated.


As well, what would the year be without some noteworthy developments from the National Labor Relations Board ("NLRB")?  For starters, there was Alstate Maintenance, LLC in which the NLRB established what constitutes protected concerted activity under the National Labor Relations Act ("NLRA").  In Quicken Loans, Inc., the NLRB found that cursing about clients in a public restroom is not protected concerted activity.  Back in August, the NLRB issued a decision in Bob's Tire Co., Inc. and found that an employer's discontinuation of Christmas bonuses did not violate the NLRA.  As well, earlier this month, the NLRB scaled back the Ambush Election Rule.  And that is not even taking into account another attempt at unionization of the Volkswagen plant in Chattanooga, Tennessee failing (again.)

I suppose this is an appropriate time to mention the surprise resignation of Labor Secretary Alexander Acosta this past summer and his subsequent replacement, Eugene Scalia.

And finally, with the upcoming Presidential election next year, several Democratic candidates made news with their labor and employment law proposals.  Several Presidential campaigns unionized, including Bernie Sanders, Elizabeth Warren, Cory Booker, and Pete Buttigieg.

While the above notes are not exhaustive, that should give readers a good overview of some of the highlights from the past twelve months.
As always, below are a couple articles that caught my eye this week.


ACLU Plans to Back Ban the Box Legislation in Idaho

The American Civil Liberties Union ("ACLU") of Idaho recently announced that it would support a ban the box law during the upcoming legislative session in 2020.  As with many ban the box bills that have been working their way through state legislatures over the past few years, passage is no sure thing.  However, perhaps the ACLU throwing its support behind this legislation will help Idaho become the next state to approve this law?


Democrats Eye LGBT Rights Lawyer to Fill Vacant EEOC Seat

Last week, Bloomberg Law published an article in which it noted that Jocelyn Samuels, an LGBT rights lawyer from California, is expected to be the nominee to fill one of the two vacant seats at the Equal Employment Opportunity Commission ("EEOC").  Traditionally, the party in majority control has the ability to nominate three positions to the EEOC while the minority party has the ability to nominate two positions.  (Nominees are normally approved with bipartisan support...although that is not always the case.)  At this time, assuming Samuels becomes the next nominee to the EEOC, the next step is for the White House to officially nominate her.  However, this is no indication of the timeframe for the White House to do so.  Stay tuned...

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