Selected reports posted in Employment Law News by WK Workday
Source: Wolters Kulwer
Selected reports posted by WK Workday August 29, 2017
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Is firing an at-will employee at the urging of an employee’s spouse due to sexual jealousy sex discrimination? It could be, said a New York state appellate court, reversing the dismissal of a sex discrimination complaint under state and city law filed by the fired employee of a chiropractic and wellness clinic who alleged that she was fired by the clinic’s husband and wife co-owners after the wife texted her to “stay the [expletive] away from my husband and family!!!!!!! And remember I warned you” (Edwards v. Nicolai).
As proprietor of Los Angeles International Airport (LAX), the City of Los Angeles could require businesses at the airport to accept a contractual condition imposing a “labor peace agreement” in licensing agreements for service providers, ruled a divided Ninth Circuit panel. A trade association representing service providers at LAX had standing to challenge the city’s actions, the appeals court determined. Nevertheless, because the city was acting as a market participant, and there was no indication that Congress intended to preempt actions taken by state and local governments in this capacity, the Ninth Circuit affirmed the district court’s dismissal of the complaint. Judge Tallman filed a separate opinion concurring in part and dissenting in part (Airline Service Providers Association v. Los Angeles World Airports).
A federal district court correctly held that a city ordinance ostensibly designed to regulate solicitation of work by day laborers was an unconstitutional restriction of commercial speech in violation of First Amendment, ruled a divided Second Circuit in a 2-1 decision. The appeals court held that an advocacy group that counseled day laborers at “shape-up sites” within the town demonstrated a sufficient injury-in-fact to confer standing to challenge the ordinance. On the merits, it agreed with the lower court that the ordinance restricted speech based on its content and was therefore subject to the First Amendment; the ordinance failed the Central Hudson test because it is an overbroad commercial speech prohibition. Judge Jacobs filed a separate dissenting opinion (Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, [New York]).
Affirming the denial of preliminary injunctive relief for a football coach seeking reinstatement and to be allowed to pray on the 50-yard line immediately after games, the Ninth Circuit held that he spoke as a public employee, not as a private citizen, when he kneeled and prayed in school logoed-attire while in view of students and parents. The panel also expressed that he used his position to press his particular views on impressionable and captive minds. Because his demonstrative speech fell within his typical job duties, he spoke as a public employee, and the district was allowed to order him not to speak in this manner, he could not show a likelihood of success on the merits of his First Amendment retaliation claim and was not entitled to a preliminary injunction (Kennedy v. Bremerton School District).