A unanimous Supreme Court on Wednesday held that FLSA exemptions are proved using the preponderance-of-the-evidence standard, not the clear-and-convincing evidence standard. EMD Sales v. Carrera (US S Ct 01/15/2024) [PDF] The case involved sales representatives who claimed they were denied overtime payments. The employer argued they were outside salesmen and therefore exempt. The
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NLRB's Thryv remedies shot down
Back in 2022 the NLRB announced that it will routinely award additional remedies for employees who are unlawfully terminated. This required employer to compensate employees for any direct or foreseeable pecuniary harms incurred as a result of the unlawful adverse actions against them, including reasonable search-for-work and interim employment expenses, if any, regardless of whether
Employment law pop quiz #20 – Denial of a transfer
Is denial of a transfer an “adverse employment decision”?Some courts are saying “No.” So no Title VII violation.A recent example: Bradley v. Ohio County Bd of Ed (West Virginia Ct App 11/12/2024) [PDF]. Bradley alleged that she was denied a transfer for 16 positions, and those positions were filled by individuals under the
Judge stops FLSA rule—nationwide
Nationwide: FLSA minimum salary threshold increases for the white-collar overtime exemption held invalid.A federal judge in Texas has invalidated—on a nationwide basis—three recent changes in the Department of Labor’s regulations governing the salary threshold for the FLSA’s “white collar” overtime exemption:(1) The July 1, 2024 increase from $684 per week to $844 per week.(2) The
NLRB: Captive audience speeches are unlawful.
For 76 years it has been lawful for an employer to require employees under threat of discipline or discharge to attend meetings in which the employer expresses its views on unionization.The NLRB now says that is a violation of the National Labor Relations Act.The decision is Amazon.com Services LLC (11/13/2024) [PDF].The Board did
Employment law pop quiz #19 – Ad for "recent graduates"
A job advertisement seeks a ‘‘recent college graduate.” Is that age discrimination?In a recent case from the Connecticut Appellate Court, a 55-year-old man claimed that Yale University advertised for a ‘‘recent college graduate” and that Travelers insurance advertised for a “recent graduate.” He claimed that these were a proxy for age, and a violation of
Employment law pop quiz #18 – Firing NLRB's General Counsel
Can the incoming President fire the NLRB’s General Counsel?Yes, indeed.President Biden fired the Republican GC on his first day in office. Federal Circuit Court decisions held this was perfectly legal.So, I expect President Trump will fire the current Democrat General Counsel—Jennifer A. Abruzzo. Then he can appoint an acting GC of his own choosing and
1st amendment protects Elon Musk's tweet
NLRB: Elon Musk’s tweet was coercive, and must be deleted.5th Circuit, en bank: That remedy violates the 1st amendment.The NLRB ruled that a tweet by Elon Musk was a threat to rescind stock options if employees unionized. As a remedy, the Board ordered that the tweet be deleted.In a 9-8 en banc decision, the 5th
Three constitutional attacks on the NLRB
Employers are going after the NRB on three different grounds. [Watch the video]First, the NRB Members can only be removed for cause. The argument is that this violates the separation of powers. Second, the ALJ is the same thing. Third, certain remedies that the General Counsel wants maybe have to have a jury
Predicting a unanimous US Supreme Court decision
I rarely predict that the US Supreme Court will decide a case unanimously. I’m doing so now.On October 4, 2024, the Court granted certiorari in Ames v. Ohio Dep’t of Youth Servs. [Briefs] Marlean Ames is a heterosexual woman who alleged that her employer – the Ohio Department of Youth Services – discriminated