<i>Ellerth/Faragher</i> Affirmative Action Defense: Resolving the Conflict
January 01, 2004
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 <i>Suders v. Easton</i>, 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 <i>Ellerth/Faragher</i> affirmative defense in constructive discharge cases.
Firing of Nonunion Workers Held Unfair Labor Practice
January 01, 2004
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).
Fair and Accurate Credit Transactions Act of 2003 Enacted
January 01, 2004
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.
Employment Protections for the Citizen-Soldier
December 01, 2003
Throughout its history, the United States has opposed a standing professional military. Instead, our nation has structured its armed forces so that our national security heavily relies upon reservists, particularly after Vietnam. Since 9/11 alone, nearly 200,000 reservists have been mobilized, with thousands more expected to be so. And many of those reservists who completed their initial mobilization were later remobilized for a second time. In a dramatic departure from the past, the Defense Department has begun deploying Guardsman to such places as the Balkans, the Sinai, Iraq, and almost everywhere else the regular forces go.
Supreme Court Hands Arbitrators the Keys to the Class Action
December 01, 2003
A plurality of the U.S. Supreme Court ruled that an arbitrator must decide whether class action arbitration in a consumer action is authorized. <i>Green Tree Financial Corp. v. Bazzle</i>, 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.
Bugs in the Office
December 01, 2003
Consider the following situation: An employee anticipates that his employment is about to be terminated, for what he believes to be discriminatory or otherwise unlawful reasons. After consulting with an attorney, he decides to tape-record conversations with his supervisors, in the hopes of recording a "smoking gun" comment. A short time later, the employee is terminated, and he later commences litigation in federal court against his employer.
