October 2023 E-Update


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Cemex Alert! Employer Ordered to Bargain Despite Winning Its Union Election

In our August 28, 2023 E-lert, we warned employers that the National Labor Relations Board’s decision in Cemex Construction Materials Pacific would be game-changing. One of the key points of that decision is that if the employer files a petition for election in response to a request for recognition but commits an unfair labor practice, the petition may be dismissed and the employer ordered to recognize and bargain with the union. And now that has happened.  For more, click here.

An Employee Who Refuses the COVID Vaccine Is Not Protected by the ADA

An employee who refused to be vaccinated against COVID-19 argued that his employer violated the Americans with Disabilities Act (ADA) by regarding him as having a disability. His claim, however, was rejected by the U.S. Court of Appeals for the Fifth Circuit.  For more, click here.



Does a “Factor Other Than Sex” Need to Be Job-Related to Justify a Pay Differential?  In seeking to simplify the analysis of a “factor other than sex” under the Equal Pay Act (EPA), the U.S. Court of Appeals for the Second Circuit has complicated the matter by breaking from its sister Circuits. For more, click here.

A Reprimand Does Not Constitute a Material Adverse Employment Action.    Although we have recently discussed the federal appellate courts’ expansion of Title VII liability to cover actions short of “ultimate employment decisions,” it is important to note that the challenged actions must still have some material impact, as the U.S. Court of Appeals for the Seventh Circuit recently reiterated. For more, click here.

Employers Can Define the Essential Functions of the Job, But Must Be Able to Back It Up.  And employees must be qualified to perform those essential functions, as the U.S. Court of Appeals for the Eleventh Circuit recently held.  For more, click here.

No Cat’s Paw Here – An Independent Review of a Proposed Termination May Be A Good Idea.  In a case in which an employee accused the higher-level manager who terminated him of being a “cat’s paw” for his allegedly racist first line supervisor, the manager’s independent review of the circumstances to support his decision wholly undercut the employee’s claim. For more, click here.

Maryland Employers – Here’s the Contribution Rate for Paid Family and Medical Leave!   As employers with Maryland employees seek to assess the economic impact of the forthcoming paid family and medical leave mandate, one question has been – what is the contribution rate? For more, click here.


TOP TIP: So, the Destruction of Evidence Is Not a Good Idea…

Employers holding a problematic piece of evidence may be tempted to dispose of it, in the hopes that once it is gone, so too will any legal claims disappear. But such actions can result in much bigger problems for the employer, as the U.S. Court of Appeals for the Fifth Circuit recently highlighted. For more, click here.