Short Clips:  Earlier this month the US Supreme Court held that a lower court properly threw out a collective action wage and hour case because the plaintiff had been offered everything she could have recovered individually.  An employer can make an offer of judgment with a deadline for acceptance, and in Genesis Healthcare Corp et al. v. Symczyk, __US__, N0. 11-1059 (April 16, 2013), the plaintiff blew the deadline.  Reasoning: her claim was satisfied, therefore moot (a point not sufficiently preserved by the plaintiff on appeal) and she no longer could represent the class. Expect FLSA plaintiffs to get out the motion for conditional class certification ASAP when filing in court… Meanwhile the High Court is mulling over the issue of retaliation under the discrimination laws, specifically: whether a Title VII plaintiff merely has to prove that the employer had a desire to retaliate when it took the adverse action, i.e., reprisal was a motivating factor.  University of Texas Southwestern Medical Center v. Nassar.  Lower courts disagree: the Seventh Circuit, e.g., requires a retaliation plaintiff to show that he would have been better treated had she not complained. But for the complaint, the plaintiff would not have been unfavorably treated.  Other courts only require proof of the motivating factor, reasoning that this is the same standard for proving protected class discrimination, such as race or gender…..An OSHA “letter of interpretation” released earlier this month declares that the agency will permit any outside representatives, such as union agents, to enter non-union worksites during OSHA inspections. The AFL-CIO says this is no radical departure, but brings OSHA inspection protocol in line with mine safety inspection procedure. But the problem is 29 CFR §1903.8(c) the OSHA regulation, stating that  accompanying representatives shall be employees, unless, with good cause shown, a third party is necessary. Until now the agency has read this regulation to mean (and has in practice elsewhere also assumed) that if the third party were a union, the union had to be the certified representative of the employees.   

 

4/26/13