Compliance Stuff

At a Glance The Third Circuit affirmed the NLRB’s application of a totality of the evidence test and overruling of  Alstate Maintenance LLC  in finding that a single employee’s conduct was protected concerted activity (PCA). While the Third Circuit found the PCA to be a motivating factor in the employee’s dismissal, the court determined that the administrative law judge and Board failed to analyze certain evidence bearing on the employer’s affirmative defense that it would have taken the same action absent the employee’s PCA. On June 23, 2025, in  Miller Plastic Products Inc. v. National Labor Relations Board , the Third Circuit ruled that substantial evidence supported the Board’s determination that a single employee’s conduct was protected concerted activity (PCA) and a motivating factor for his termination . In doing so, the court affirmed the Biden Board’s overruling of  Alstate Maintenance LLC  and expansion of the analysis of whether a single employee’s co...

On May 22, the U.S. Supreme Court  granted a stay  allowing for the Trump administration’s termination of Merit Systems Protection Board (MSPB) chair Cathy Harris to stand while her lawsuit challenging her termination works its way through the courts. The order formalizes a temporary emergency stay granted in April and means that the MSPB, the quasi-judicial agency which oversees retaliation cases for federal employee whistleblowers, will continue without a quorum needed to issue decisions. Whistleblower advocates have  characterized the firing of Harris without cause as creating a crisis for federal whistleblowers . Harris was fired by President Trump on February 10. Sh e quickly challenged her termination, claiming it was illegal because under federal law, members of the MSPB may be removed from office “only for inefficiency, neglect of duty, or malfeasance in office.” While U.S. Court of Appeals for the District of Columbia Circuit issued a ruling temporarily reinstati...

On March 28, 2025, the U.S. Court of Appeals for the District of Columbia Circuit ruled that President Donald Trump likely has the authority to remove National Labor Relations Board (NLRB) member Gwynne Wilcox and Merit Systems Protections Board (MSPB) member Cathy Harris without cause. Quick Hits The D.C. Circuit Court ruled that President Trump likely has the authority to remove NLRB member Gwynne Wilcox and MSPB member Cathy Harris without cause , staying previous reinstatement orders from lower courts. The ruling leaves the NLRB and MSPB without enough members to hear cases. The decision addresses significant constitutional questions regarding the president’s power to remove members of independent agencies, boards, and commissions and Congress’s authority to restrict removal. In a split decision, the D.C. Circuit stayed two rulings by federal district courts in Washington, D.C., that had  reinstated NLRB member  Wilcox and MSPB member Harris to their respective independent...

  How'd that happen? An employer who terminated an employee after he took intermittent FMLA leave for diabetes  won its case , and  recently won again on appeal . According to both courts, the employee appeared to be trying to play it both ways with his FMLA leave. Even if the employer was wrong about that, the courts said, the employer's honest belief defeated the plaintiff’s interference and retaliation claims under the Family and Medical Leave Act. Here’s what happened: Michael Shipton worked for Baltimore (Maryland) Gas & Electric as an underground gas mechanic. He also had a Commercial Drivers License. That CDL will be important later. Mr. Shipton has Type 2 diabetes. In August 2017 , he submitted an FMLA medical certification completed by a physician’s assistant stating that he would need intermittent leave for what sounds like very severe hypoglycemic episodes . The physician’s assistant said that Mr. Shipton “is an uncontrolled diabetic with very fluctuant bl...

A friend of mine was recently allowed to resign from her job instead of being terminated. I run a small business and have had to terminate employees for various reasons. Are there instances where allowing an employee designated for termination to resign is preferable? —Davison  T ermination is never an easy task, but handling it the right way can pave the best possible path forward for both the employer and employee. Allowing an employee designated for termination to resign voluntarily can be preferable in certain situations. “Resignation in lieu of termination” can offer a more dignified exit for the employee and potentially reduce legal risks for the employer . There are some factors to consider when determining if resignation in lieu of termination is appropriate. If the termination is not due to gross misconduct or a major policy violation, offering the option to resign can be a respectful alternative. This approach is suitable for cases involving failure to meet performance o...