Employment Law Strategist

  • Does Constructive Discharge Bar an Employer's Defense?

    In last month's Employment Law Strategist, we explored the background to a growing conflict among the circuit courts regarding the availability of the so-called Ellerth/Faragher affirmative defense in constructive discharge cases. We began with an analysis of Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), in which the Third Circuit held that holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in Ellerth and Faragher. Granting certiorari to consider the Third Circuit's ruling, the U.S. Supreme Court has now undertaken to resolve the discord among the circuits.

    February 09, 2004Albert J. Solecki, Jr. and Lori A. Mazur

  • Breaking News...

    An audit by Wal-Mart of 128 stores and over 25,000 employees has reportedly revealed thousands of labor violations at the Arkansas-based retailing chain, including 1371 violations of child labor laws, 60,000 missed breaks and16,000 skipped meal times, primarily in violation of state labor laws. The July, 2000 internal audit was apparently distributed to high-level company executives but has now come to public attention through lawsuits filed against the company, which employs more than 1.2 million U.S. workers.

    January 14, 2004ALM Staff | Law Journal Newsletters |

  • Ellerth/Faragher Affirmative Action Defense: Resolving the Conflict

    On Dec. 1, 2003, the United States Supreme Court agreed to consider whether a constructive discharge caused by a supervisor's sexual harassment constitutes a tangible employment action that bars an employer from raising the defense that the employee unreasonably failed to employ the employer's procedures for preventing and correcting such conduct. In granting the Pennsylvania State Police's request for review from the United States Court of Appeals for the Third Circuit's decision in Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), the Supreme Court has the opportunity to resolve a growing conflict among the circuit courts regarding the availability of the so-called Ellerth/Faragher affirmative defense in constructive discharge cases.

    January 01, 2004Albert J. Solecki, Jr. and Lori A. Mazur

  • Firing of Nonunion Workers Held Unfair Labor Practice

    The United States Court of Appeals for the Sixth Circuit recently held an employer that fired two nonunion workers for complaining to a client about their employer's policies violated the National Labor Relations Act (NLRA).

    January 01, 2004Daniel J. Raker

  • Fair and Accurate Credit Transactions Act of 2003 Enacted

    The Fair and Accurate Credit Transactions Act (FACT), which amends the Fair Credit Reporting Act (FCRA), was recently enacted. The FCRA created a national credit reporting system, and was set to expire this month. FACT permanently authorizes the majority of the FCRA's provisions while including two noteworthy revisions. Particularly significant for employers are FACT Sections 611 and 411, which include new standards for third-party investigations of employee wrongdoing and reporting of employee medical information to employers.

    January 01, 2004Daniel J. Raker

  • Around the States

    National cases that may affect your practice.

    January 01, 2004ALM Staff | Law Journal Newsletters |

  • Supreme Court Hands Arbitrators the Keys to the Class Action

    A plurality of the U.S. Supreme Court ruled that an arbitrator must decide whether class action arbitration in a consumer action is authorized. Green Tree Financial Corp. v. Bazzle, 123 S.Ct. 2402, (June 23, 2003). Four Justices concluded that whether or not the contracts forbid class arbitration is a disputed issue of contract interpretation and that such a dispute must be decided by an arbitrator. Justice Stevens concurred in the judgment. This decision is likely to directly impact the arbitration of statutory discrimination claims as well as other employment arbitrations. The question is in what ways and to what effect.

    December 01, 2003Merrick T. Rossein