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Home > Employment Law Update May 2022

Employment Law Update May 2022

Decisions from across the country in May 2022 contained some interesting, employer-friendly rulings in developing areas of law, including labor relations via Twitter, COVID-19 ‘disability’, and trans-gender benefits issues.  Check out the details below.

3rd Cir. Reverses National Labor Relations Board, Finds Federalist Boss’ Tweet Was Joke

The U.S. Court of Appeals for the Third Circuit reversed a National Labor Relations Board (“NLRB”) decision finding the publisher of online news magazine The Federalist, Ben Domenech, violated labor law by tweeting that he would send workers “to the salt mine” if they sought to unionize, finding the tweet was a joke, not a threat.  The ruling resolves FDRLST Media’s challenge to the NLRB’s 2020 ruling that the tweet was an “obvious threat” barred by the National Labor Relations Act (the “NLRA”).  Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA, which includes threatening employees with adverse consequences, such as closing the workplace, loss of benefits, or more onerous working conditions, if they support a union, engage in union activity, or select a union to represent them.

The Third Circuit panel concluded that the NLRB’s threat finding glossed over the context of the tweet, observing it evoked the farcical image of a “tiny media company” of 6 employees toiling “in dimly-lit mineshafts alongside salt deposits.”  Domenech touted the win, writing that he’s “pleased with the outcome, and happy that the humorless trolls and their army of bureaucrats lost.”

California Federal Court rejects Claim by Hertz Employee that Mild COVID Was Disability

Hertz defeated an employment discrimination lawsuit by a former employee who was fired after she came to work feeling sick while waiting for COVID-19 test results, after a California federal judge Monday found that the employee – who contracted a mild case of the virus – can’t be considered disabled under California’s Fair Employment and Housing Act (“FEHA”).

Addressing a question of first impression, the District Court in a 19-page order granted Hertz’s motion for summary judgment, finding that mild COVID-19 symptoms don’t qualify as a disability under the FEHA.  The FEHA defines a ‘disability’ as a condition that affects one or more body systems and limits a major life activity, but does not include a condition that is mild or doesn’t make major life activities more difficult.  In that respect, it contains a similar definition of disability as the Americans with Disabilities Act (“ADA”).  In the Order, the Court wrote: “When it presents with temporary symptoms akin to the common cold or seasonal flu, COVID-19 will fall outside the FEHA definition of ailments considered a disability … Because the symptoms of her infection were mild with little or no residual effects, Roman’s COVID-19 infection is excluded from FEHA’s definition of disability.”

While the case addressed California law, it may provide guidance for similar claims under the ADA and other states’ disability discrimination laws.  The case is Michelle Roman v. Hertz Local Edition Corp. et al., case number 3:20-cv-02462, in the U.S. District Court for the Southern District of California.

Judge Says Christian Cos. Don’t Have To Cover Gender Transition Care

A North Dakota federal judge temporarily barred the U.S. Equal Employment Opportunity Commission and the Department of Health and Human Services from requiring Christian employers and health care providers to cover gender transition surgery.  The court granted the Christian Employers Alliance’s (“CEA”) motion for a preliminary injunction in an order that prevents the EEOC and HHS from requiring the business group’s members to provide health coverage for gender transition services until the court considers the merits of the case.  The CEA sued the government in October, claiming that by requiring trans health coverage, the EEOC and HHS were misinterpreting Title VII and the Affordable Care Act in violation of the Religious Freedom Restoration Act, the First Amendment and the Administrative Procedure Act.

The Court enjoined the EEOC from interpreting or enforcing Title VII of the Civil Rights Act against the CEA in a way that would require the business group’s present or future members to provide insurance coverage for gender transition services. He also enjoined the EEOC from applying or enforcing those regulations against insurers and third-party administrators of CEA members.  The Court also enjoined the HHS from interpreting or enforcing Section 1557 of the ACA and any regulations in a way that would require future or present CEA members to provide, offer, perform, facilitate or refer for gender transition services, and from enforcing any regulations restricting or compelling member speech on gender identity issues.

The CEA joins several other religious groups that have obtained court orders blocking federal agency requirements on trans health care coverage.

The case is Christian Employers Alliance v. U.S. Equal Employment Opportunity Commission et al., case number 1:21-cv-00195, in the U.S. District Court for the District of North Dakota.



Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.