Henry S. Shapiro

Blogs: EPL Risk Mitigation Blog, Labor & Collective Bargaining

Latest Articles

Labor Board: Is Union’s Inclusion of Weingarten Rights Statement in Collective Bargaining Agreement Coercive?

By Henry S. Shapiro, Howard M. Bloom & Philip B. Rosen on April 5, 2019

The National Labor Relations Board (NLRB) has remanded a 2013 decision to an administrative law judge to determine whether the Board’s landmark 2017 decision on work rules and policies affects its 2013 determination that a union did not violate National Labor Relations Act (NLRA) Section 8(b)(1)(A) by unilaterally including a Weingarten rights statement on the back cover of a collective bargaining agreement and distributing that agreement to employees. California Nurses Association, National Nurses Organizing Committee,…

EPL Risk Mitigation Blog

Seventh Circuit Affirms Summary Judgment for Employer That Terminated Disabled Employee for Misconduct

By Henry S. Shapiro on February 26, 2019

The Seventh Circuit Court of Appeals recently upheld dismissal of failure to accommodate and disability discrimination claims where, for several years, the employer provided accommodations relating to plaintiff’s mental health (including directing co-workers not to startle plaintiff). Scheidler v. State of Indiana et al. Despite that admonition, a supervisor reached toward her with a choking motion and said, “I could just strangle you” resulting in a heated argument. When investigating the incident, the employer learned…

EPL Risk Mitigation Blog

Seventh Circuit Affirms Grocery Store Employee’s Same-Sex Harassment Title VII Victory

By Henry S. Shapiro on August 31, 2018

A male employee working in the meat department of his local grocery store prevailed in his Title VII sex discrimination claim alleging an unlawful hostile environment harassment created by his male coworkers and male supervisor. Following a verdict in plaintiff’s favor at the trial court level, the employer appealed to the U.S. Court of Appeals for the Seventh Circuit. Smith v. Rosebud Farm, Inc. The appellate court upheld the lower court’s ruling. According to the…

EPL Risk Mitigation Blog

Fifth Circuit Finds Employer’s Peer Review Process Does Not Constitute an Adverse Employment Action

By Henry S. Shapiro on July 31, 2018

The Fifth Circuit recently affirmed the granting of summary judgment to an employer dismissing a Title VII race discrimination claim. In Stroy v. Gibson, an African American primary care physician employed by the Department of Veterans Affairs alleged race discrimination following a peer review committee determination that competent practitioners would have managed the treatment of a patient differently than Plaintiff. Briefly, the employer’s policy allowed for peer review of a doctor’s patient care after a…

Labor & Collective Bargaining

Employee’s Improper Access to Secured Area Outweighs Right to Engage in Concerted Activity, NLRB Finds

By Kathryn J. Barry, Henry S. Shapiro, Howard M. Bloom & Philip B. Rosen on March 13, 2018

The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018). The employee, a hotel server and member of the union’s organizing committee, was discharged after leading a delegation of 20 individuals…

EPL Risk Mitigation Blog

Employer’s Ultimatum Supports Employee’s ADA Failure to Accommodate Claim

By Henry S. Shapiro on February 6, 2018

The United States District Court for the Southern District of Alabama in McClain v. Tenax Corp. recently denied in part an employer’s motion for summary judgment on a disabled employee’s failure to accommodate claim under the ADA. The Court held the ADA-required interactive process never took place where the employer’s issued an ultimatum to the disabled employee in response to his request for a reasonable accommodation. The facts show the importance of a well-documented interactive…

EPL Risk Mitigation Blog

Beyond the Weinstein Effect: It’s More Than Just Training

By Henry S. Shapiro & Jeffrey M. Schlossberg on January 23, 2018

In light of the many high-profile news stories involving sexual harassment, employers are cognizant of the need to update policies, improve investigation procedures, and conduct training. However, there is more going on than meets the eye. Several states have proposed legislation that creates a path for victims to come forward. In addition, the new federal tax law also impacts how an employer will evaluate sexual harassment claims. In New York and South Carolina, proposed bills…

Employee Benefits & Executive Compensation Blog

The United States Supreme Court Rules in Favor of Hospitals on “Church Plan” ERISA Exemption

By Henry S. Shapiro, Stacey Cerrone & Madeline Chimento Rea on June 7, 2017

The United States Supreme Court unanimously ruled in favor of religiously-affiliated hospitals and healthcare organizations in holding that a pension plan need not be established by a church in order to qualify for ERISA’s church plan exemption. Petitioners are religiously affiliated non-profit healthcare organizations appealing decisions by the Third, Seventh, and Ninth Circuit Courts of Appeal that a church must establish an ERISA-exempt church plan. Respondents are current and former employees of these organizations. Justice Kagan explained…

EPL Risk Mitigation Blog

Failure to Accommodate Religious Belief Claim to Move Forward

By Henry S. Shapiro on March 10, 2017

Religious discrimination claims by a delivery driver for a catering company who was terminated the day after being sent home for wearing a religious head covering survived summary judgment due to the temporal proximity between the events. In EEOC v. Triangle Catering, LLC, the Western District of North Carolina held that the temporal proximity between the employer telling the driver to remove his religious head covering and his termination the following day created a reasonable…

EPL Risk Mitigation Blog

Employee’s ADA and FMLA Claims Survive Summary Judgment After Leaving Work Early To Go To Hospital

By Henry S. Shapiro on January 9, 2017

In Knight v. Barry Callebaut USA Service Company, Inc., the United States District Court of the Eastern District of Pennsylvania denied an employer’s motion for summary judgment on claims brought by a terminated employee under the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). During the work day, the employee sought “brief periodic breaks” of ten to sixty minutes each, up to three times per day, due to his medical…