February 2021 E-Update


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NLRB Finds Distribution of Employee Handbook to Unionized Employees Lawful, But Troubling Signs for Employers in Dissent                                                              

A divided National Labor Relations Board held that an employer’s issuance of an employee handbook addressing terms and conditions of employment covered by a collective-bargaining agreement (CBA) did not violate the National Labor Relations Act (NLRA). But a partial dissent by Chairman McFerran, currently the Board’s lone Democrat, is troubling for unionized employers who generally understand that the employee handbook policies do not supersede or otherwise alter the existing CBA. For more, click here.

A Change of Opinion (Letters): The DOL Continues Its Retreat from Business-Friendly Positions

Employers may be saddened – but not surprised – by the U.S. Department of Labor’s about-face under the Biden administration on a number of issues of interest to businesses. The latest actions involve the withdrawal of Fair Labor Standards Act opinion letters on independent contractor status, tipped employees, and sleep time. For more, click here.

The Latest Mask Guidance from the CDC

The Centers for Disease Control and Prevention (CDC) continues to revise its guidance on the use of masks to prevent the spread of COVID-19. Since we issued our February 18, 2021 blog post, The Latest COVID-19 Workplace Guidance from the CDC: More on Masks, Returning to Work After Infection, and Vaccine Communications to Employees, the CDC has further updated its Types of Masks guidance and Your Guide to Masks. For more, click here.


Section 1981 Is a “Bulletproof Vest,” Not a “Full Suit of Armor” Against Discrimination

In addition to seeking recourse for race discrimination under Title VII, an employee may also bring a claim under Section 1981. But, as the U.S. Court of Appeals for the First Circuit noted, the scope of 1981 is more limited.   For more, click here.

An Employee Claiming Retaliation Must Rebut All, Not Just Some, of the Reasons for Her Termination

The U.S. Court of Appeals for the Eighth Circuit rejected an employee’s argument that she need only show that some of the employer’s reasons for her termination were a pretext for retaliation under Title VII, where the reasons were not so intertwined such that rebutting some cast the rest in doubt. For more, click here.

A Showing of Damages Is Necessary In Order to Recover Under the FMLA

An employee can only recover for a violation of the Family and Medical Leave Act if they actually suffered harm, according to the U.S. Court of Appeals for the Seventh Circuit. For more, click here.

An Employee May Be Held Accountable for Poor Performances, Even If Caused By Disability

The U.S. Court of Appeals for Fifth Circuit recently reminded employers that they may hold employees accountable for performance standards even if the failure to meet the standard is caused by the disability. For more, click here.

Paid Military Leave May Be Required Under USERRA

For the first time, a federal appellate court has ruled that the Uniformed Services Employment and Reemployment Rights Act requires employers to provide paid military leave to the extent it provides other, comparable types of paid leave, like jury duty or sick leave. For more, click here.

Reasonable Accommodation Obligation Extends to Workplace Access

A recent case reminds employers that, under the Americans with Disabilities Act, they must provide reasonable accommodations to allow employees with disabilities to obtain the same workplace opportunities as those without disabilities – including access to the workplace. For more, click here.

Is Denial of a Lateral Transfer an Adverse Employment Action?

Although the current answer is a clear “no,” the future is somewhat less certain in light of a recent decision from the U.S. Court of Appeals for the D.C. Circuit. For more, click here.

TOP TIP: Employers – Make Sure Those Timekeeping Records Are Accurate and Detailed!

An employer that fails to maintain adequate records may face a nightmare scenario where the testimony of a few employees may support a finding of liability as to a larger group, according to the U.S. Court of Appeals for the Fifth Circuit, relying upon longstanding Supreme Court precedent. For more, click here.