Wyatt Employment Law Report


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U.S. Supreme Court Finds that Lafe Solomon’s Service as Acting NLRB General Counsel Violated the FVRA

By Courtney Samford

On March 21, 2017, the U.S. Supreme Court finally resolved the issue of Lafe Solomon’s role as Acting General Counsel of the NLRB in National Labor Relations Board v. SW General, Inc.  In an opinion authored by Chief Justice Roberts, the Supreme Court held that Solomon’s position as Acting General Counsel violated The Federal Vacancies Reform Act of 1998 (“FVRA”) once he was nominated by then President Obama for the permanent position.  Generally, Article II of the U.S. Constitution requires the President to obtain Senate approval to appoint “Officers of the United States,” but the FVRA allows the President to appoint a limited class of individuals to serve as acting officers on a temporary basis until a replacement can be confirmed by the Senate.  Pursuant to the FVRA, certain individuals who are nominated for a permanent position may not serve as an acting officer.

In June 2010, a vacancy arose in the general counsel position for the NLRB.  Then President Obama appointed Solomon to serve as Acting General Counsel on a temporary basis, and several months later, nominated him to serve as the General Counsel.  Solomon’s temporary position did not require Senate confirmation, but the permanent position did.  However, the Senate refused to act on Solomon’s nomination, and Obama was forced to Continue reading


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Split Decision by the U.S. Supreme Court Results in Union Win

By Michelle High

iStock_000008223650_FullFor decades, “fair share” fees have been justified as a mechanism to help unions cover the costs associated with collective bargaining.  In the 1977 case of Abood v. Detroit Board of Education, the U.S. Supreme Court ruled that compulsory union dues are unconstitutional, but unions could collect fees necessary to cover costs such as those associated with collective bargaining.  Consistent with this notion, “agency shop” laws currently exist in more than twenty states.  These laws require members of a unionized profession to have to pay “fair share” or “agency” fees even if they are not members of the union.  California is one such state.

In Friedrichs v. California Teachers Association, Rebecca Friedrichs and nine other California teachers objected to being forced to support the California Teachers Association and challenged the imposition of the associated fees.  They have argued that requiring non-union members to pay fair share fees is Continue reading


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The Impact of Justice Scalia’s Death on This Term’s Employment-Related Cases

By Sean G. Williamson

Antonin_Scalia_Official_SCOTUS_PortraitThe recent and unexpected death of Justice Antonin Scalia at a West Texas ranch may affect the decisions in several employment-related cases pending before the U.S. Supreme Court this term.  The nine-member body—now reduced to eight—faces a variety of controversial issues predicted to divide the Court along ideological lines.  Prior to Scalia’s passing, the Court generally could be described as containing four conservatives and four liberals, with Justice Anthony Kennedy providing the swing vote.  Without Scalia, the influence of the conservative wing is weakened.  A 4-4 decision will result if Kennedy joins the remaining conservatives in any vote opposite the perceived liberal justices.

When the Court is split 4-4, the lower court’s decision stands, and no national precedent is set.  Moreover, any circuit split the Court might have wished to resolve will remain unchanged.  Rather than render a 4-4 decision, the Court could order the case to be reheard next term—when Continue reading


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United States Supreme Court Hears First Amendment Challenge to “Fair Share” Fees

By Amanda Warford Edge

microphoneFor nearly forty years, the Supreme Court’s decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), has reigned. Under Abood, unions are permitted to collect agency fees from public employees who are not union members, as long as the fees go toward the costs of collective bargaining and not politics. But a group of California public school teachers has now challenged this practice. These teachers contend that such “fair share” fees violate their First Amendment rights.

According to the claimants, every year, they are required to financially support a group who advocates for viewpoints that they oppose and do not wish to subsidize. They argue that spending by public-sector unions always includes politicized speech, and since they are required to pay “fair share” fees, their First Amendment rights are violated. Counsel for the claimants has been quoted as stating that Continue reading


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Supreme Court Concludes Offer of Judgment Cannot Moot Class Actions

By Douglas L. McSwain and Michael D. Hornback

Every business would like to avoid class actions. Even if an individual class plaintiff’s damages are small, aggregated damages across a sizable class can be staggering.  Of late, businesses have utilized a defense strategy to offer the individually named class plaintiff(s) all of the relief requested (via an “offer of judgment”), prior to the class being certified by the court.  Several courts within the Third, Fourth, and Sixth Circuit Courts of Appeals have held offers of judgment for the full relief sought by the individual class plaintiff, even if not accepted, moots the entire class action, and deprives the court of further jurisdiction to hear the case.  By offering all the relief requested by the class plaintiff, the business could avoid the class action entirely.  The First, Second, Fifth, Seventh, and Eleventh Circuit Courts of Appeals have not bought this defense, and so the United States Supreme Court took up the case of Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), this term to resolve the conflict between the circuits.

On January 20, 2016, the Supreme Court rendered its decision in Campbell-Ewald, holding that an unaccepted offer of judgment has no force and effect, and does not Continue reading


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Fate of the $185 Million Pregnancy Discrimination Verdict Against Autozone Revealed: Parties Jointly Move to Dismiss

By Leila G. O’Carra

pregnancy, workOn Monday, July 20, Autozone Stores, Inc. and former employee Rosario Juarez jointly moved to dismiss Juarez’s highly publicized pregnancy discrimination case. Juarez filed suit against Autozone in 2008, claiming that Autozone demoted her and then fired her because of her pregnancy. She also claimed that Autozone harassed her because she was pregnant, and retaliated against her when she complained about the discrimination.

In November 2014, a jury found in Juarez’s favor on all of these claims, and awarded her $879,719.52 in compensatory damages, and an astounding $185,000,000.00 in punitive damages.

Autozone promptly asked the United States District Court for the Southern District of California for a new trial, and to rule that punitive damages could not be awarded against Autozone under the facts presented at trial. Autozone also asked the court to declare a mistrial and sanction Juarez’s attorneys for alleged inappropriate contact with jurors.

According to Autozone’s court filings, Juarez’s trial team communicated with a juror before the trial was over. The juror had been dismissed after the liability phase of the trial, before the punitive damages phase, because Continue reading


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Supreme Court Legalizes Same-Sex Marriage: Obergefell v. Hodges and Its Impact on Employers

By Amanda Warford Edge

rainbow flagEarlier today, in Obergefell v. Hodges, No. 14-556, the U.S. Supreme Court declared, in a 5-4 ruling, that same-sex couples have a right to marry anywhere in the United States. Justice Anthony Kennedy, writing for the majority, stated that “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” Further, “the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” Prior to this ruling, fourteen states (including Kentucky) banned same-sex marriages.

This ruling is, of course, game-changing for individuals across the nation – impacting them on social, political and personal levels. The ruling will also influence Kentucky employers, whose practices and procedures inevitably need to be updated.

First, Kentucky employers will need to make certain administrative changes to ensure that same-sex spouses are covered. For example, employers might need to modify their enrollment or eligibility forms to ensure that health benefits are available to those with same-sex spouses. Second, Kentucky employers will need to Continue reading