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Employment Law Roundup

Here are some quick summaries of a few interesting
employment law developments from the past week.

The Employer Handbook has an interesting look at a case
where a company’s HR manager admitted that the company fired an employee as a
form of FMLA retaliation
. The employee was scheduled for a month of FMLA leave,
during which time the company asked her to return to work early. She refused,
and the company eliminated her position. She claimed FMLA retaliation as part
of a larger suit. The company originally claimed the firing was part of a large
scale reduction in force, but during a deposition the HR Coordinator claimed
the similar firing of another employee was FMLA retaliation. In general,
employers should avoid terminating employees just when they are about to return
from FMLA leave- the timing often makes courts suspicious of the company’s
purported business justification.

JDSupra takes a look at the NLRB’s continued emphasis on
eliminating portions of employee handbooks that might be seen as prohibiting
NLRA-protected activities
. In an unusual case, the NLRB recently investigated a
situation where employees at a unionized workplace complained about workplace
issues to their union representative, and were then threatened by the union for
doing so. A union employee complained to the union about the presence of
temporary workers at her workplace at a time when union employees were being
laid off, and the union warned her that she would be removed from an ongoing
class action claim if she continued to complain. The NLRB found this warning
violated the NLRA because it was aimed at eliminating the employee’s complaints
about the workplace. The union supervisor also issued warnings in union
meetings that the NLRB found could have been construed as constraining the
employees in the exercise of their rights.

Finally, the Employment Discrimination Report
has a brief look at a recent EEOC settlement with an Arizona Restaurant that
unlawfully removed a pregnant employee from working on Sundays during the football  season
. A Sunday during football season was
one of the most lucrative shifts at the restaurant, and the restaurant had a
policy of not allowing pregnant women to work those shifts. The rationale was
that male customers did not want to be served by pregnant women while they
watched football. The EEOC stated that an employer could not disadvantage a
pregnant employee’s employment conditions in order to satisfy an assumed
customer preference. This one has the look of a “no kidding” kind of case.