Good News For Employers

The Supreme Court of the United States just made it far more difficult for employees to pursue discrimination claims on a class basis.  In Wal-Mart Stores, Inc. v. Dukes, the Court considered whether about one and a half million current and former female Wal-Mart employees could bring discrimination claims under Title VII as a class.  Reversing the decision of the United States Court of Appeals for the Ninth Circuit, the Court held that the women could not do so.  Particularly of note for employers, the Court rejected the plaintiffs’ theory that Wal-Mart’s decision to invest its managers with significant discretion created a common claim of discrimination (although the Court recognized that individual managers might well exercise their discretion in a discriminatory manner).  In reaching its decision, the Court also relied heavily on the fact that Wal-Mart had in place a formal policy prohibiting sex discrimination.


The NLRB Continues To Challenge Adverse Employment Decisions Citing Use Of Social Media 

In November 2010, the NLRB issued a complaint against American Medical Response of Connecticut alleging that the company committed an unfair labor practice when it terminated an employee after she posted comments about her supervisor on Facebook.  After much media attention, that case settled in February, providing employers with little in the way of concrete guidance on handling such matters going forward.  However, in a move reinforcing the continued need for employer caution in this area, the NLRB issued two more complaints in May contending that an employee’s use of social media was protected concerted activity under the National Labor Relations Act.

On May 9, 2011, the NLRB issued a complaint against a non-profit social service agency, Hispanics United of Buffalo, alleging that the agency unlawfully terminated five employees after they complained on Facebook about their working conditions.  On May 19, 2011, the NLRB issued a complaint against Knauz BMW, a Chicago area BMW dealership, alleging that it violated the NLRA after it terminated a salesman who (along with others) had complained about the quality of a customer event and who later posted pictures and commentary about the event on his Facebook page.  

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