Hunton Employment & Labor Perspectives

On May 31, 2024, the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) partially overturned a decision issued by the National Labor Relations Board (the “Board”) in Absolute Healthcare d/b/a Curaleaf Arizona v. National Labor Relations Board.

As we previously discussed, employers continue to grapple with the workplace effect of medical marijuana laws (enacted in twenty-three states and the District of Columbia), as well as the recreational marijuana laws of Colorado, Washington, Oregon and Alaska. Notwithstanding these laws, marijuana remains illegal under the federal Controlled Substances Act, and all courts to have addressed the issue thus far have held that employers may continue to insist on a drug-free workplace, conduct drug tests, and take adverse employment action based on positive drug tests. 

The Supreme Court of Virginia recently ruled in VanBuren v. Grubb that supervisors or managers who participate in the termination of an employee may be held liable in claims of wrongful discharge.  This ruling is significant because it places supervisors in the shoes of their employers and threatens them with liability.

The Texas Supreme Court just accepted certified questions from the Fifth Circuit on two Texas employment law issues of first impression for the high court.  Sawyer v. E.I. DuPont De Nemours & Co., No. 12-0626.  The Texas Supreme Court will decide:  (1) whether at-will employees may bring fraud claims against their employers relating to the loss of their employment; and (2) if not, whether employees subject to a 60-day cancellation-upon-notice collective bargaining agreement that limits their employer’s ability to discharge its employees only for just cause constitute at-will employees under Texas law.

In the current economy, with unemployment over 9% and multiple applicants for every position, an out-of-work individual should be doing everything possible to get a new job, right? Perhaps, but not for purposes of “mitigation” under fair employment statutes.

On August 11, 2011, the U.S. District Court for the Western District of New York ruled that a fired employee alleging discriminatory discharge under Title VII had no obligation to enroll in vocational training in order to mitigate his damages from the alleged discrimination. EEOC v. Dresser Rand Co., No. 04-CV-66300, 2011 U.S. Dist. LEXIS 89466 (Aug. 11, 2011).