Protecting Employers Since 1985

SCOTUS Reverses Practice of Deferring to Federal Agency Rules Interpreting Law

By James B. Sherman / June 28, 2024

Just last Friday the U.S. Supreme Court issued decisions in a pair of companion cases, overturning longstanding precedent that instructed federal courts to defer to agency interpretations of the laws they enforce. The precedent was established by the Court forty years ago, in Chevron v. Natural Resources Defense Counsel.  The holding of that case, which…

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Eighth Circuit Court of Appeals Holds that a Minnesota School District Violated Free Speech by Promoting Black Lives Matter in Classrooms, While Excluding “Blue Lives” and “All Lives” Matter Themes

By James B. Sherman / June 25, 2024

In the wake of a Minneapolis police officer’s murder of George Floyd and widespread rioting that ensued, teachers at a Twin Cities area school pressed the school’s superintendent to allow them to promote Black Lives Matter in the classroom. Initially, the superintendent denied the request as a violation of school policy against bringing politics into…

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Employee Fired for Rude and Aggressive Behavior Deemed Ineligible for Unemployment Compensation Benefits

By James B. Sherman / June 22, 2024

Generally, I don’t write much about unemployment compensation decisions.  They don’t impact a business the way a lawsuit can, and employers just don’t seem to find them very interesting.  I suspect some of the disinterest stems from unfavorable outcomes employers come to expect when a terminated employee’s application for unemployment compensation benefits is challenged based…

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EEOC Issues Controversial Final Enforcement Guidance On Workplace Harassment

By James B. Sherman / April 30, 2024

On Monday this week the EEOC raised eyebrows when it published its long-awaited final take on harassment law. The guidance is aimed at educating employers and employees alike, but will no doubt be used by plaintiff and defense lawyers in court. Consequently, employers, HR professionals, and consultants are well advised to become aware of what…

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Employer’s Job Description Not Detailed Enough For Quick Win In ADA Failure To Accommodate Case

By James B. Sherman / April 27, 2024

Job descriptions with lifting, standing, mobility, and/or other essential requirements are ubiquitous across all industries. EEOC interpretive regulations and numerous court decisions give deference to the judgement of employers as to what are the “essential functions” of the jobs they provide. Written job descriptions are presumed to accurately reflect essential functions. Why is this important?…

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Eleventh Circuit Puts The Breaks On Florida’s Individual Freedom Act (a/k/a “Stop Woke Act”) 

By James B. Sherman / March 29, 2024

Florida Governor Ron DeSantis and the Sunshine State’s legislature have been aggressively opposed to certain fringe elements of DEI initiatives. In 2022 they enacted the Individual Freedom Act to prevent schools as well as employers from subjecting students or workers to instruction or training that compels them to believe in various banned subjects.  Among the…

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NLRB Decision Finds Home Depot USA, Inc. Constructively Discharged Minnesota Employee Who Refused To Remove A BLM Insignia From His Store Apron   

By James B. Sherman / March 28, 2024

While Florida’s court battle over DEI may not be over, oddly enough, workers opposed to mandatory DEI training may have better luck going to the National Labor Relations Board.  For starters, consider that the Board’s General Counsel, Jennifer Abruzzo has declared in a memo that federal labor law protects the right of employees to refrain…

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APPEALS COURT ISSUES TWO DIVERGENT OPINIONS INTERPRETING THE MINNESOTA HUMAN RIGHTS ACT (MHRA)

By James B. Sherman / March 25, 2024

ONE DECISION HELD THAT ENSURING FAIR COMPETITION MIGHT PROVIDE A POWERLIFTING EVENT SPONSOR WITH A VALID BUSINESS REASON TO EXCLUDE TRANSGENDER ATHLETES FROM COMPETING AGAINST WOMEN, THE OTHER DECISION HELD THAT A PHARMACIST’S CONSCIENTIOUS OBJECTION TO DISPENSING A BIRTH CONTROL PILL THAT COULD “END LIFE,” IS NO DEFENSE TO A CLAIM OF PREGNANCY DISCRIMINATION  The…

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RECENT APPELLATE COURT DECISION PROVIDES IMPORTANT LESSONS ON THE IMPORTANCE OF TRACKING INTERMITTENT FMLA LEAVE/HOW NOT TO IMPLEMENT A PERFORMANCE IMPROVEMENT PLAN

By James B. Sherman / February 29, 2024

This week the U.S. Court of Appeals for the Seventh Circuit, in Chicago, overturned a healthcare employer’s summary judgement win in an FMLA interference and retaliation case.  The case involved a managerial employee who in her employer’s view was terminated for performance – not meeting expectations – after being placed on a performance improvement plan,…

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DEI DONE RIGHT – EASIER SAID THAN DONE

By James B. Sherman / January 30, 2024

Promoting diversity, equity, and inclusion, or DEI in the workplace seems a worthy goal for any employer. After all it is the ethical thing to do, right? And if DEI is ethical, you might think it would be simple enough for any ethical business to implement. Just do the right thing by people, right?  But…

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