Hot August HR Law Nights

Just over 50 years ago, iconic rock singer and songwriter Neil Diamond released a double album called "Hot August Nights," a recording of his live August 1972 concerts at the Greek Theatre in Los Angeles. In one song, Diamond described how during a hot August night, a preacher led an old-time tent revival by "starting soft and slow, like a small earthquake, and when he lets go, half the valley shakes." I think Diamond just as easily could've been describing recent HR law developments in the extraordinarily hot Summer of 2023. 

NLRB Shakes Up Employer Conduct Rules and Handbooks

The National Labor Relations Board (NLRB) rocked the summer with a recent ruling that should cause all employers to reevaluate their handbooks and conduct rules. The National Labor Relations Act (NLRA) allows employees even at non-union worksites to speak out and act together to improve working conditions. This is the right to act in concert (just like Neil Diamond)! The NLRB just said that this means the common employer rules requiring civility and respect among co-workers may violate the NLRA. My law partner Marci Rechtenbach knows more about this issue than most Utah lawyers, so I asked her to summarize the new ruling. Please see below for her interesting take on this hot issue. 

New Jersey Court Upholds Catholic School Firing of Unmarried Pregnant Teacher Speaking of heat, don't be surprised if you hear Catholics in New Jersey and elsewhere debating a parochial school's termination of a pregnant unmarried teacher. Some critics of the decision might call the move un-Christian and lacking in mercy or compassion. Supporters likely would note that Catholic school teachers should set a good example for their students about following church teaching, including regarding sex outside of marriage. Whatever the public debate, the fired teacher sued. This August, the New Jersey Supreme Court ruled in favor of the school, saying as a religious organization, it had the power to set employment standards based on tenets of the faith. 

Federal Court Opens Door to More Bias Claims

A federal appeals court (covering the states of Texas, Mississippi and Louisiana) recently overturned decades-old case law that held that the federal antidiscrimination law applied only to "ultimate employment decisions" (such as hiring, firing, demotions, etc.) and not to non-ultimate acts like scheduling, discipline or corrective action. Buckle up...the new court ruling could expose many more employers to the heat of discrimination and harassment claims. 

HR Lawyers Forced into Religious Liberty Training? Maybe!

There is breaking news on another federal lawsuit in Texas that is also cranking up lots of heat this August. As first reported in our last Employment Law Update by my employment law partner Sean Monson , the case involves a hotly-litigated dispute in which Southwest Airlines is accused of religious bias in the workplace, because it fired a flight attendant who sent repeated messages (and graphic images) on social media to a co-worker who allegedly was pro-choice on the abortion issue. A jury recently ruled in favor of the fired worker. Afterwards, the court held in-house lawyers for Southwest in contempt. The in-house lawyers had sent a message to all employees that the company was disappointed in the ruling and planned to appeal. The judge ruled the in-house lawyers had not followed his order to send a message to all employees saying that the airline does not discriminate based on religion. As a result, the judge (appointed by former President Donald Trump), ordered the in-house Southwest lawyers to attend mandatory training on religious liberty to be conducted by a Christian legal organization. The judge has now paused that contempt ruling while Southwest appeals. We will all have to wait a bit to learn if this novel sanction, imposed by an unhappy judge, will stick. Stay tuned. 

The Summer of our Discontent?  Perhaps all this uncertainty and "heat" in the HR law world should not be a surprise. It has been a hot summer, meteorologically speaking, with record high temperatures in many places all over the globe. There have been wildfires in tropical Maui and many heat-related deaths everywhere. Culture wars dominate our politics. Six decades ago, borrowing from William Shakespeare's Richard III, the Nobel prizewinning writer John Steinbeck published his final novel The Winter of Our Discontent. Maybe Shakespeare and Steinbeck just got the seasons wrong?

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