Experience

Associational Disability Discrimination

We represented Morgan Stanley Smith Barney against plaintiff's claims of associational disability discrimination, retaliation for anticipatory use of FMLA and wrongful discharge under New Hampshire common law. The Court granted Summary Judgment to our clients on all four counts.

This case is an excellent example of careful fact accumulation in discovery to persuade a court that no reasonable jury could find the facts necessary to sustain a plaintiff's verdict. While the court did not reach the question of whether it would recognize a claim of anticipatory breach of a party's FMLA rights, having concluded that the jury would not be able to find that the company's legitimate reason for termination was not the real reason, it suggested that it would not permit such a claim where the employee was not yet qualified for FMLA and had not asked for such leave. The court also reaffirmed earlier cases which hold that periods of longer than 2-3 months between the alleged indicator of animus and the adverse action were too long to permit any inference of discrimination. The case is also important to show how a court should properly analyze whether there is sufficient credible factual disputes to permit the case to go to trial, which analysis was made possible by the excellent record keeping of reviews and discipline maintained by the company.

Shaw's Supermarket: Decertification Petition

We represented Shaw's Supermarket chain in decertification petition for 1,100 employees covering nine stores in western Massachusetts. The issue was whether or not a decertification petition filed by employees could be effective after the third complete year of a five year collective bargaining agreement. The National Labor Relations Board held that the company did appropriately withdraw recognition of the union based on a petition and an independent verification by an outside accounting firm of the veracity of the signatures and numbers.

This case was part of an ongoing series of cases concerning after-acquired store litigation and automatic recognition through authorization cards. The case is significant because it confirmed a process of decertification through independent verification in order to meet the heightened standard of the certainty of the employees wishing to no longer be represented.

Firm Highlights

Blog

News of Supreme Court Leak is a Good Reminder to Revisit Confidentiality Policies

If you have been on social media today (or yesterday) or picked up a newspaper or listened to the radio or watched television—really if you have consumed news in any format, you likely are...

Blog

Supreme Leak: Religion at Work

Over the last year, our society has navigated COVID-19 and rules concerning vaccination and masking. As a society and on this blog, we have discussed regularly the role religious freedoms play in the work...

Blog

2021 LexisNexis “Workers’ Compensation Emerging Issues Analysis”

I just read a wonderful resource for anyone who has dealings with any aspect of workers’ compensation law. “Workers’ Compensation Emerging Issues Analysis”, the 2021 LexisNexis volume co-authored by Thomas A. Robinson and National...

Blog

Limiting Harassment Claims When Returning to IRL Engagement

It is April 2022 and after 2 years of pandemic-related in-person meeting restrictions (also known as meeting In Real Life (IRL)), we are seeing increases in employers permitting work-related travel. That, coupled with requirements...

Blog

“Mug-shots”: Are Employees’ risky beverage containers a cause for concern?

Prior to (and more so during) the pandemic, many individuals who found themselves working from home were limited in ways to express their uniqueness, their personalities, the things that made them, well, them. It...

Blog

HR 2116 and What You Need to Know About Hairstyle Discrimination

On March 18, the United States House of Representatives passed HR 2116 by a vote of 235-to-189. The Creating a Respectful and Open World for Natural Hair Act (a/k/a CROWN Act) , would restrict...

Publication/Podcast

Labor & Employment Annual Update: Tips and Trends for 2021 and 2022

Blog

BREAKING: The Supreme Court Blocks OSHA COVID Vaccine/Testing Rule (NFIB v. OSHA) and Allows the Healthcare (Medicare/Medicaid) Vaccine Rule (Biden v. Missouri) to Take Effect

In NFIB v. OSHA , the Court focused its decision on OSHA’s emergency temporary standards which require the Secretary to show (1) “that employees are exposed to grave danger from exposure to substances or...

Blog

More Madness: Catch Up With NCAA Happenings

While there’s no denying March Madness brings the National Collegiate Athletic Association (NCAA) considerable attention, the Association has been the subject of significant press over the last year for several hot-button employment-related issues. First...

Blog

Supreme Leak: NLRA Rights

For blog followers, you likely saw last week’s post reminding you to revisit your confidentiality policies in the wake of the leaking of the Supreme Court’s draft opinion in Dobbs v. Jackson Women’s Health...

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