Ben Bodzy

Ben Bodzy is a Shareholder in Baker Donelson’s Nashville office, representing management in labor and employment litigation. Contact Ben at bbodzy@bakerdonelson.com.

A National General Strike has been announced for February 17, 2017 as a “peaceful display of resistance and solidarity” to protest the Trump Administration’s policies. This “strike” poses thorny legal issues for nonunion employers that are unaccustomed to dealing with “striking employees.” Purely political protests, including walking off the job and calling out, can be protected if the purpose of the protest is to impact their interests as employees through the political process. However, it is not at all clear that the National General Strike has anything to do with employment policies, and it appears to be directed to protests of the Trump administration generally.
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The UAW surprised many observers on April 21, 2014 by withdrawing its objections to the February 12-14, 2014 election at Volkswagen’s Chattanooga, Tennessee plant. After employees voted by a 53% margin to reject representation by the UAW, the UAW filed objections, claiming that statements by Tennessee government officials tainted the outcome of the election. The fact that the objections were withdrawn has been widely reported.  However, there has been less analysis of why the UAW withdrew its objections. Since this blog is not privy to the UAW’s thinking, our analysis of the reasons for the UAW’s decision are merely theories. However, it is likely that one or more of the following factors drove the UAW’s decision to withdraw its election objections. (more…)

Whether you are double-checking what you already know or need to learn something new about a legal issue, Baker Donelson’s Quick and Easy Guides to Labor & Employment Law is for you. Covering the basics of the Federal rules and ten states, the topics are those our clients most often ask about and are the basics that human resources professionals encounter on a daily basis. While this guide is certainly not intended to provide a “law-school” thesis on these issues, it will provide a useful reference tool for any HR professional. (more…)

The U.S. Court of Appeals for the Seventh Circuit became the second federal appellate court to extend successor liability under the FLSA to an asset purchaser.  In Teed et al, v. Thomas & Betts Power Solutions, LLC, the Seventh Circuit applied “federal common law” of successor liability to find that an electrical contractor who purchased assets in a foreclosure sale was liable for its predecessor’s FLSA liability.  The Court broadly held that “successor liability is appropriate in suits to enforce federal labor or employment laws…unless there are good reasons to withhold such liability.” (more…)

The Department of Labor recently announced a precursor to “Right to Know” regulations under the FLSA.  The Department has proposed a survey “to collect information about employer’s experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification.”  In 2009, the Department announced that its regulatory agenda included controversial regulations that would require employers to provide all employees and government investigators with a “classification analysis” and explanation of how each employee is classified and how their pay is calculated.  The Department has repeatedly delayed the implementation of this proposal (or even providing details on it), presumably because it would impose serious burdens on employers to provide an individualized analysis to each employee.  That analysis could then be used against the employer in subsequent litigation over the employee’s classification under the FLSA.  The Department’s announcement of a “survey” on January 11, 2013, suggests that the “Right to Know” regulations remain on the Administration’s agenda for its second term.

In a curious decision, the U.S. District Court for the Western District of Arkansas found that the use of the “n-word” was not racially derogatory.  In Tyrrell v. Oaklawn Jockey Club, the Court granted summary judgment to the employer and dismissed the employee’s claims of a racially hostile work environment.  The employee and her co-workers were all African-American.  The employee claimed that her co-workers repeatedly said, “I told you nig–as we could get this done.  I told you we could do this.  Y’all my ni–as.”  In rejecting the racially hostile work environment claim, the Court held that:

The offensive language in this case is the n-word.  Plaintiff is African American.  Her co-workers are African American.  That does not by itself preclude a hostile-work-environment claim.  But combined with the fact that Plaintiff was only once the target of the language, and in a non-derogatory context, the Court has trouble seeing how an objective person in Plaintiff’s position would have found her co-workers’ jesting “extreme in nature.”  By all appearances, the term was not used derogatorily at all.  It might have offended Plaintiff, but viewed objectively, the language was at most coarse jesting.

It is unclear at this point whether the Court’s decisions will be appealed.  However, the case provides a lesson for employers.  Many will undoubtedly disagree with the Court’s conclusion that the “n-word” can ever be used in a non-derogatory manner.  However, this case underscores the broader point that context matters in evaluating hostile work environment claims.

In a case of first impression, the U.S. Court of Appeals for the Sixth Circuit has ruled that psychological counseling can count as a medical examination under the Americans with Disabilities Act.  In Kroll v. White Lake Ambulance Authority, the Sixth Circuit held that an employer’s demand that an employee “receive psychological counseling” and “see a mental health counselor” as a condition to keeping her employment may constitute a prohibited “medical examination” under 42 U.S.C. § 12112(d)(4)(A). (more…)