Employee who Denied Supervisor’s Demands for Sex Has no Retaliation Claim

The Seventh Circuit has held that a male employee who alleged he was terminated for denying his female supervisor’s demands for sex has no retaliation claim under Title VII of the Civil Rights Act of 1964.

The employee alleged that his supervisor threatened to fire him if he refused to continue their sexual relationship. When the employee rejected her ultimatum, the supervisor instigated a fight that led to the employee’s termination. The employee filed suit, alleging sexual harassment and retaliation in violation of Title VII.

A plaintiff claiming retaliation under Title VII must show 1) a statutorily protected activity; 2) an adverse action taken by the employer; and 3) a causal connection between the two.

The court, noting a circuit split about whether a person who rejects a supervisor’s sexual advances has engaged in protected activity, found that the employee failed to show that he engaged in protected conduct. There simply was no evidence that the employee believed that his supervisor’s actions were unlawful. The only statements the employee made to the supervisor were that they “were not good with each other” and he “was not messing with her anymore,” statements which do not indicate he believed he was being sexually harassed. (Source: Daily Labor Report).

Eleventh Circuit Finds Employee’s Claims Must be Submitted to Arbitration

In addressing a case in which an employee sued his former employer for alleged age and race discrimination, as well as retaliatory termination, the Eleventh Circuit Court of Appeals recently considered whether the claims brought should be resolved through the company’s arbitration policy or the federal courts.

In holding that the district court erred in denying the employer’s motion to compel arbitration, the court stated that it need “only apply basic contract interpretation principles in harmony with a general federal policy in favor of arbitration.” The court found that the employer’s arbitration policy was a valid and enforceable contract under Georgia state law, and the claims the individual presented were precisely of the type that he agreed to arbitrate through the company’s arbitration policy.

The Eleventh Circuit found that the district court erroneously held that the claims of retaliatory and discriminatory discharge brought were not the type of ongoing, workplace disputes amenable to “open door” resolution as contemplated by the company’s open door policy, and that the lower court further erred by finding the details of the open door policy were illusory and therefore inoperative. (Source: Daily Labor Report).

Texas Court finds Noncompete for Jet-Pack Flyer Unenforceable

In a case involving a confidentiality and non-compete agreement between a company utilizing a “Rocketbelt” – a personal rocket pack, and an employee, a Texas appeals court affirmed judgment for the employee, holding the employer take nothing.

In 2004, after the employee had worked with the company for some time, he signed a confidentiality and non-compete agreement with his employer. Working for the employer, the employee learned everything about the operation, maintenance, fuel manufacturing and fueling techniques of the Rocketbelt. Subsequently, the employee went to work for another company that was designing and building a different rocket pack. The employer then sued to enjoin the employee from violating the terms of the 2004 agreements.

The appellate court, in affirming the trial court’s holding that the employer take nothing, stated that for a non-compete agreement to be enforceable, it must be supported by consideration. While the employer argued that the employee received consideration in the form of continued opportunities to pilot the rocket pack, the appeals court disagreed, reasoning that if the mere opportunity to continue performing one’s job could be consideration, then an employer could spring a non-compete covenant on an existing employee and enforce such a covenant absent new consideration. Moreover, the employer’s act of permitting the employee to fly the rocket pack did not give rise to the employer’s interest in restraining the employee from competing. The employer also argued that the non-compete agreement was supported by the consideration of past and future provision of confidential information and training. The court found, however, that the information the employer provided the employee before he signed the non-compete agreement could not form the consideration for the agreement because past consideration was not competent consideration for contract formation. (Source: Daily Labor Report).

Exotic Dancers Suing Strip Club Under FLSA

A Cleveland, Ohio exotic dancer has filed a complaint against her employer strip club based on violations of the Fair Labor Standards Act (“FLSA”) and the Ohio Minimum Fair Wage Standards Act. Since filing of the complaint in the case, at least two other dancers have joined the suit.

The dancers accuse the club of failing to pay minimum wage and improperly collecting a portion of their nightly tips. They also allege they were misclassified as “independent contractors” instead of employees.

The club required dancers to pay what was referred to as a “club fee” out of their nightly tips, regardless of how much money they made in a given night.

The dancers seek class action certification under the FLSA, an injunction against the club, liquidated damages for unpaid wages, treble damages under Ohio law, and return of all tip money and attorneys’ fees. (Source: Employment Law 360).

General Manager’s Statements Direct Evidence of Religious Discrimination

The Eastern District of Washington, in denying an employer’s motion for summary judgment, has held in part that an employer’s derogatory comments about an employee’s religious clothing may provide direct evidence that its refusal to promote was prompted by the employee’s religious beliefs.

The employee, an African American Muslim, began work for the Defendant restaurant and bar as a dishwasher. As part of her religion, the employee wears a scarf on her head, or “hijab,” for modesty. After working as a dishwasher for some time, a manager allowed the employee to begin working as a waitress, although not during the most lucrative shifts.

The employer’s general manager asked the employee “what the deal” was with the “thing” on her head and asked if she could “wear a fancier headdress” because she did not “understand the whole Muslim faith.” The employee later asked to be assigned to the more lucrative shifts. Even though the employee’s direct supervisor considered her to be qualified, the general manager rejected the shift switch, indicating that she preferred to have “hot white girls” working these shifts, and that “the head dress and…being Muslim [is] not what we want in the bar.”

The court found that a jury could conclude that the general manager’s alleged statements, if believed, prove discriminatory animus without inference or presumption. In other words, the court believed the statements to be possible direct evidence of discrimination, making summary judgment for the employer inappropriate. (Source: Daily Labor Report).

Texas Teachers to Tote Guns in Class

Recent American school shootings have led to an increase in calls for schools to allow students and teachers to carry legally concealed weapons in classrooms. Harrold Independent School District, a system of about 110 students, 150 miles northwest of Fort Worth, will let teachers bring guns to class starting in the fall.

The school district board unanimously approved the plan and according to the district’s superintendent, parents have not objected. Experts say that allowing teachers to bring guns to class is a first in this country.

Congress once barred guns at school nationwide, but the U.S. Supreme Court struck the law down, letting states and local communities adopt their own laws on the issue. (Source: www.msnbc.com).

EIGHTH CIRCUIT HOLDS VIETNAM VETERAN NOT REGARDED AS DISABLED

The Eighth Circuit Court of Appeals has affirmed a district court’s holding that a county employee who was terminated after refusing to enroll in an inpatient alcohol treatment center was not regarded as disabled by his employer.

The employee, a Vietnam veteran with Post Traumatic Stress Disorder (“PTSD”), was ordered to and refused to attend inpatient alcohol treatment after he left work early one day, began drinking, gathered firearms and killed or wounded some of his family’s farm animals including a pet raccoon, ducks, a peacock and a family dog.

The employee sued under the Americans with Disabilities Act (“ADA”), asserting that he was disabled because of the PTSD and that the county regarded him as a disabled alcoholic.

Concerning the claim that he was disabled, the court found that even assuming a prima facie case was shown, the employer articulated a legitimate, non-discriminatory reason for firing him – that he would not complete inpatient treatment.

Regarding the “regarded as” claim, the court found that if a restriction is based upon the recommendation of a physician – in this case completing treatment, then it is not based upon “myths or stereotypes” about the disabled and does not establish a perception of disability. (Source: Daily Labor Report).

ELEVENTH CIRCUIT HOLDS EMPLOYER CANNOT WITHHOLD LAWYER RECORDS

The Eleventh Circuit Court of Appeals has refused an employer request to order a district court to change a decision that required the employer to produce information allegedly protected by the attorney-client privilege.

After an employee reported to human resources that several of the company’s temporary employees were illegal aliens, the employee was required to meet with the company attorney. The employee was then fired almost immediately.

The employee brought suit against the employer and during the discovery phase requested information related to his communications with the company attorney and the decision to terminate. The employer refused to produce the information, claiming it was protected by the attorney-client privilege.

The district court found that even though the information was privileged, the employer waived that privilege when it filed a response that discussed the employee in another pending case that did not involve the employee. As such, the information was to be produced.

The Eleventh Circuit held that the employer showed neither a clear usurpation of power or abuse of discretion of the lower court, and thus refused to provide the relief the employer sought. (Source: Employment Law 360).

NEW DOT RULES ALLOW OBSERVED URINATION

Pursuant to new testing rules promulgated by the Department of Transportation (“DOT”), workers in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime and pipeline industries whom have previously tested positive for a prohibited substance will be required to give their urine specimens while being observed by specimen collectors.

The rule is located at 73 Fed. Reg. 35961, and is intended to “create consistency with specimen validity requirements,” and is deemed necessary in response to the “wide variety of products for adulteration of urine” and “various mechanical devices” that are currently available to substitute urine specimens.

Before giving specimens, employees will now be required to “raise their shirts, blouses, or dresses/skirts, as appropriate, above the waist and lower their pants and underpants to show the observer, by turning around, that they do not have a prosthetic device on their person.”

Employers should be advised that many states do not allow such “observed” specimen collections unless such testing is required by federal law. (Source: BNA Daily Labor Report)

SIXTH CIRCUIT CREATES NEW TEST FOR MIXED MOTIVE CASES

Title VII mixed motive cases at the summary judgment stage will no longer be subject to the well-known McDonnell Douglas burden shifting framework, per the decision in White v. Baxter Healthcare Corp., 6th Cir., No. 07-1626 (July 3, 2008). Now, in order to survive a defendant’s motion for summary judgment, a “Title VII plaintiff asserting a mixed motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) race, color, religion, sex, or national origin was a motivating factor for the defendant’s adverse employment practice.” Mixed-motive claims are specifically covered in 42 U.S.C. 2000e-2(m), which reads, “An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” (Source: BNA Daily Labor Report). field with other employers who currently underpay employees and are able to underbid on contracts. (Source: Employment Law 360).

SEX AND SLEEP NOW COVERED BY DISABILITIES LAW

Two July decisions from the U.S. Court of Appeals for the District of Columbia Circuit will force employers to view the term “disability” more broadly. The court expanded the term “major life activity” under the 1973 Rehabilitation Act, the country’s antidiscrimination law for federal employees. The court held that disabilities that promote sleeplessness or the inability to have sex are covered by the Rehabilitation Act.

This “broadening” of the term “disability” is an important one. Congress is currently working on legislation that would significantly loosen the term “disability” under the Americans with Disabilities Act (“ADA”), which protects private employees from disability discrimination. Many lawyers agree that these changes will increase the number of disability cases that go to trial. (Source: Fulton County Daily Report)

Supreme Court Holds RFOA Defense Employer’s Burden

On June 19, 2008 the U.S. Supreme Court held in a 7-1 decision that an employer facing a disparate-impact claim under the Age Discrimination in Employment Act and planning to defend on the basis of “reasonable factors other than age” (“RFOA”) must not only produce evidence raising the defense, but must also persuade the fact-finder of its merit. Importantly for employers, the decision in Meacham v. Knolls Atomic Power Laboratory eases the burden on plaintiffs bringing disparate impact claims under the ADEA.

The company had to reduce its work force. In order to select employees for layoff, managers were told to score subordinates on three scales – “performance,” “flexibility,” and “critical skills.” The scores were then summed, along with points for years of service, and the totals determined which employees would be let go. Of the 31 salaried employees laid off, 30 were at least 40 years old.

28 of the 31 employees alleged that Knolls Atomic “designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees.” The plaintiffs sought certiorari to the Supreme Court, noting conflicting decisions assigning the burden of persuasion on the reasonableness of the factor other than age. The Court of Appeals in this instance placed it on the employee (to show the non-age factor unreasonable).

The ADEA’s general prohibitions against age discrimination are subject to a separate provision, Section 29 USC Section 623(f), that creates exemptions for employer practices otherwise prohibited under the ADEA. The RFOA exemption is listed in Section 623(f) alongside one for bona fide occupational qualifications (“BFOQ”). Thus, an employer may be able to avoid liability for age discrimination if its practices were based on a reasonable factor other than age. However, if the evidence of reasonableness presented by the parties is basically even – or “a tie” – is the employer liable for age discrimination anyway or has the plaintiff failed to prove her case?

The Supreme Court answered this question by holding that an employer defending a disparate impact claim under the ADEA bears the burden of production and the burden of persuasion for the RFOA defense. (Source: Employment Law 360).

Ninth Circuit Finds Right to Privacy in Employee Text Messages

On June 18, 2008 the Ninth Circuit Court of Appeals issued a decision in Quon v. Arch Wireless Operating Company, finding that an employer violated its employee’s Fourth Amendment rights and rights guaranteed under the California Constitution by viewing the content of text messages sent and received by the employee.

Plaintiff Quon is a policeman in Ontario, California. Arch Wireless provided the City of Ontario with text messaging services for pagers distributed to employees, including Quon. The city had an informal policy regarding the use of the pagers – in the event a pager user went over an allotted amount of characters, the city was to pay overage charges, so a police officer in charge of the pager program would contact the individual officers going over and ask them to write a check for their individual overage. Quon went over the monthly character limit several times and he paid the city for the overages. Each time the officer would tell Quon he owed “X” amount and Quon would pay.

The city officer was eventually ordered by his superiors to request transcripts of pagers showing an overage, including Quon’s. Arch Wireless provided the transcripts, which contained sexually explicit messages.

Quon sued the city and his department, contending that the city and the police department violated his Fourth Amendment rights to be free from unreasonable search and seizure, and his rights to privacy under the California Constitution. The Ninth Circuit noted that the “extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question.” The court found that the search by the government employer was unreasonable.

The court then addressed Quon’s reasonable expectation of privacy, which turned on the department’s policies regarding privacy in his text messages. Fatal to the employer was the practice that pagers would not be audited so long as individuals paid their overage charges.

Finally, the court considered the reasonableness of the search, finding it unreasonable in scope. The court listed several less-intrusive ways that the department could verify the efficacy of the pager character limit. (Source: Daily Labor Report)

MINNESOTA COURT SIDES WITH EMPLOYEES IN OWBPA CASE

On May 28, 2008 the U.S. District Court for the District of Minnesota granted in part a class of plaintiffs’ motion for partial summary judgment as to the invalidity of certain releases and waivers provided by the employer in connection with a group termination, pursuant to the Older Workers Benefits Protections Act (“OWBPA”), 29 U.S.C. 626(f).
In some circumstances, an employee’s rights under the OWBPA and the Age Discrimination in Employment Act (“ADEA”) can be waived if specific criteria are met. Pursuant to the OWBPA, however, an individual cannot waive any right or claim under the ADEA unless the waiver is “knowing and voluntary.”
In finding the releases invalid as a matter of law, the Minnesota District Court first found that the evidence was undisputed that the information presented to the plaintiffs by the employer was inaccurate.

Second, while the employer disclosed charts listing different categories of positions and their job codes, as required, the positions were not grouped together and there was no definition of the job codes included. The court found the presentation of this information “confusing.”

The current nature of the economy may increasingly force employers to consider reductions in force. (Source: Employment Law 360).

SMITHFIELD FOODS SUES UFCW UNDER RICO

On May 30, 2008 Judge Robert Payne for the Eastern District of Virginia refused to dismiss Smithfield Foods, Inc.’s (“Smithfield”) pending complaint against the United Food & Commercial Workers International Union (“UFCW”). Among other things, Smithfield’s complaint alleges violation by the UFCW and its leadership of the civil sections of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a law traditionally aimed at organized crime. Recently, companies have attempted to use RICO to combat extremely aggressive union tactics known as “corporate campaigns,”

Specifically, Smithfield alleges that that after a decade-long attempt by the UFCW to unionize some of Smithfield’s employees failed, the union conspired to extort Smithfield’s “voluntary” recognition of the union - by injuring Smithfield economically until Smithfield either agreed to union demands or ceased operations.

While the judge’s decision is not a final adjudication of Smithfield’s claims, it does keep Smithfield’s RICO claims alive. The decision is an important one for employers. A corporate campaign is a potentially devastating and sometimes fatal tool used by unions attempting to apply sufficient pressure to persuade an employer to yield to a union’s position. One way a union might use a corporate campaign is to force union recognition by a company without a National Labor Relations Board secret ballot election. Use of RICO by employers is a very creative way to fight damaging union tactics. (Source: Daily Labor Report)

SUPREME COURT PERMITS RETALIATION CLAIMS UNDER ANTI-DISCRIMINATION STATUTES

On May 27, 2008 the U.S. Supreme Court issued two decisions permitting retaliation claims against employers under two anti-discrimination statutes, despite the absence of any explicit retaliation causes of action within the statutes.

In Gomez-Perez v. Potter, the Court held that a federal employee who was retaliated against due to the filing of an age discrimination complaint may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (“ADEA”). In sum, the Court found that the phrase “discrimination based on age” includes retaliation based on the filing of an age discrimination complaint.

In the other case, CBOCS West, Inc. v. Humphries, the Court considered whether 42 U.S.C. § 1981 (“§ 1981”) encompasses retaliation claims. Interestingly, the plaintiff in the case alleged he was terminated because of his race and because he complained about racial discrimination against another employee.

Section 1981, a civil rights law enacted just after the Civil War, provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts…as is enjoyed by white citizens.”

The Court, relying on its previous interpretations of 42 U.S.C. § 1982 (“§ 1982”), another Civil War era statute which permits retaliation claims, and the similarities between § 1981 and § 1982, fueled the Court’s decision. (Source: Employment Law 360).

American Airlines Reaches Settlement with Military Pilots

A class made up of 353 American Airlines pilots has reached a settlement with American Airlines in a suit based on alleged violations by American of the Uniformed Services Employment and Re-employment Rights Act of 1994. Specifically, the pilots alleged that reduction of accrued service time by pilots who had taken military leave in 2001 resulted in the reduction of the pilots’ earned vacation time, while pilots who took comparable nonmilitary leave did not suffer reduction in their vacation time. Additionally, American allegedly placed pilots on military leave on a “leave of absence” status, which affected their ability to bid on flight schedules and otherwise negatively impacted their employment status. The settlement would require American to provide some pilots with sick leave credits, change existing policies and pay the pilots $345,772. (Source: Employment Law 360).

Triple Damages to Successful Massachusetts Wage & Hour Plaintiffs

On July 13, 2008 “An Act Further Regulating Employee Compensation” will go into effect in Massachusetts, mandating triple damages for employees who prevail in their wage and hour suits. A proposed amendment from Massachusetts Governor Deval Patrick that would have permitted courts to use their discretion in awarding less than treble damages in instances where employers act in good faith was rejected by the Massachusetts legislature. Some expect wage and hour legislation in Massachusetts to dramatically increase. It has been opined that the new legislation will benefit both employees and employers – employees in terms of compensation, and employers in terms of a more level playing field with other employers who currently underpay employees and are able to underbid on contracts. (Source: Employment Law 360).

Higher Civil Fines for Employers’ Immigration Violations

A new rule approved by Attorney General Michael Mukasey and Secretary of Homeland Security Michael Chertoff will permit higher civil fines against employers who violate federal immigration laws. Civil fines will increase 25%, or by as much as $5,000. Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing illegal aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud. (Source: St. Louis News Today).

Coach’s Title VII Claim Based on Interracial Marriage OK

The Second Circuit Court of Appeals has held that a white assistant college basketball coach can proceed to trial on his claims that Iona College fired him due to his marriage to a black woman. Specifically, the Court held that an employer may violate Title VII of the Civil Rights Act of 1964 if it takes action against an employee because of the employee’s association with a person of another race. The assistant coach alleged that two of the five college officers formally involved in the decision to end his employment had prior histories of racially “questionable” conduct.

The Second Circuit Court of Appeals had never before ruled on the question of whether Title VII applies in such circumstances. The Court reasoned that where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race – that is, had the employee in question here been black, his marriage would not have been interracial. (Source: Daily Labor Report).

D.C. Circuit Revives Job Applicant’s FCRA Claims

The United States Court of Appeals for the District of Columbia Circuit has reversed a district court order, thereby reviving a job applicant’s lawsuit against a background search company, hired by the applicant’s potential employer.

The job applicant was offered a job, contingent upon the satisfactory completion of a background check. CARCO, the search company hired to perform the check, took 36 days to complete the task. During this time, the potential employer withdrew the job offer because they did not receive the search results in a timely fashion. The applicant then sued CARCO for negligent violation of the Fair Credit Reporting Act (“FCRA”).

Under the FCRA, “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” Congress explicitly established a private cause of action for negligent FCRA violations, which the applicant sued under in this case.

Alcoholic Employee’s Unexcused Absences Not Protected by the FMLA

The Seventh Circuit has held that an alcoholic employee who missed several days of work before he could begin substance abuse treatment was not protected by the Family and Medical Leave Act (“FMLA”) against being fired for absenteeism.

The employee, who had been with his company for 15 years, sought treatment for his condition in his final days with the employer. He requested FMLA leave for an absence extending from July 29, 2000 to August 14, 2000. On July 28-30, the employee admittedly drank enough alcohol to lose his memory for two or three days. He missed his scheduled work shifts on July 31, August 2 and August 3. From August 4th through 11th he was hospitalized for treatment for alcohol dependence and acute withdrawal syndrome.

Under the FMLA, eligible employees are entitled to up to 12 weeks of unpaid leave per year for absence due to, among other things, a “Serious Health Condition” that renders the employee unable to perform the functions of their job. Furthermore, substance abuse may be a Serious Health Condition under certain conditions, but FMLA leave may be taken only for treatment of substance abuse.

As the employee was not in inpatient or outpatient treatment on July 31, August 2 or August 3, the employer was able to legally terminate the employee for missing these days. (Source: Employment Law 360).

Sixth Circuit Holds Temporal Proximity Enough To Support Retaliation Claim

According to the Sixth Circuit Court of Appeals, a sixty-seven year old male who was fired immediately after filing a charge of age discrimination against his employer could establish a prima facie case of retaliation under the Age Discrimination in Employment Act (“ADEA”) without offering any other evidence that the employer’s action was motivated by his ADEA charge filing.

Charles Mickey, who had been with his employer for 33 years, received repeated pay cuts over a period of years while a younger employee Mickey had trained received raises. After Mickey filed a charge of discrimination with the EEOC, he was immediately terminated.

A Sixth Circuit retaliation claim requires a plaintiff to show that (1) he engaged in protected activity; (2) that the defendant had knowledge of the protected conduct; (3) that the defendant took an adverse employment action toward him; and (4) that there was a causal connection between the protected activity and the adverse employment action. In this instance the court reconciled existing caselaw in holding that when an employer fires an employee immediately after learning of a protected activity, a causal connection can be inferred. (Source: Daily Labor Report).

OSHA No. 300A Must Be Posted By February 1, 2008

Beginning February 1, covered employers with ten or more employees must post the OSHA-required Form 300A for the prior year.

Pursuant to the Occupational Safety and Health Act, employers must prepare and maintain a file of employee injuries and illnesses. The OSHA No. 300 is the Log of Occupational Injuries and Illnesses and the OSHA No. 300A is the Summary of Occupational Injuries and Illnesses.

The completed OSHA No. 300A must be posted in a conspicuous place or places where notices to employees are usually posted. The posting period is February 1 – April 30. The OSHA Form 300A must be posted even if there were no reportable injuries/illnesses in the prior year. (Source: Society for Human Resource Management).

President Signs Law Amending Family and Medical Leave Act

As of January 28, 2008, and pursuant to the National Defense Authorization Act for FY 2008 (“NDAA”), the Family and Medical Leave Act of 1993 (“FMLA”) now permits a “spouse, son, daughter, parent or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

The NDAA, signed by President Bush, also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” The Department of Labor is expeditiously preparing such regulations. In the interim, DOL encourages employers to provide this type of leave to qualifying employees. (Source: U.S. Department of Labor).

President Announces NLRB Nominees

President Bush has announced his intention to fill the vacancies on the National Labor Relations Board. The expiration of the terms of some members has left three vacancies on the Board.

The President intends to nominate Robert J. Battista, of Michigan; Gerard Morales, of Arizona; and Dennis Walsh, of Maryland.

The nominees can likely expect a somewhat difficult confirmation process. Some Democratic politicians will probably consider these nominees to be anti-union. (Source: The White House).