Littler Lightbulb – May 2026 Employment Appellate Roundup

Supreme Court Holds FAAA Does Not Preempt Negligent Hiring Claims Against Freight Brokers 

In Montgomery, v. Caribe Transport II LLC, 608 U. S. ___ (May 14, 2026), the Supreme Court addressed the scope of the safety exception provision of the Federal Aviation Administration Authorization Act (FAAAA), which provides that the FAAA A “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” The case involved a trucking accident following which the plaintiff filed suit in federal court alleging, among other things, that the freight broker that had coordinated the shipment negligently hired the driver and the trucking company.

The federal district court held that the FAAAA expressly preempted the negligent hiring claim against the broker and the claim did not fall within the safety exception. The Seventh Circuit affirmed and the plaintiff appealed to the Supreme Court, which granted certiorari, noting that the appellate courts are divided as to whether the FAAAA’s safety exception permits negligent hiring claims against brokers. The Supreme Court reversed the Seventh Circuit holding that negligent hiring claims fall within the FAAAA’s safety exception. As Justice Kavanaugh acknowledged in his concurrence, “how expansively to read the key statutory phrase ‘with respect to motor vehicles’ … is complicated.”  He stated: “The brokers and their amici raise serious concerns about the repercussions of state tort liability against brokers.” Ultimately, however, examining the language and context of the statute, Justice Kavanaugh concluded that “as of now, federal law does not preempt state tort liability against brokers for negligent selection of trucking companies.”

Supreme Court Holds “Last Mile” Drivers May Be Exempt from Arbitration

In another Supreme Court decision, Flowers Foods, Inc. v. Brock, 608 U. S. ___ (May 28, 2026), the Court examined the scope of the transportation worker exemption from arbitration. The Federal Arbitration Act (FAA)  Section 1 exempts from arbitration employment contracts of workers engaged in interstate commerce. The issue in the case was whether contracts for workers who deliver goods locally after the goods have traveled across state lines fall within the exemption. The district court and Tenth Circuit held that the exemption applied, and the Supreme Court agreed.

The Supreme Court reaffirmed that the exemption requires a “direct,’ ‘necessary,’ and ‘active’ role in moving goods across borders” but stated that individuals can be direct, necessary, and active participants in moving goods from one state to another without crossing state lines or interacting with vehicles that do. The Court reasoned that interstate commerce “involves not just crossing state lines, but intrastate activity too. Though ‘a continuous carriage’ may begin in one [s]tate and end in another, ‘much of the journey’ can take place ‘within the limits of a single state.’” For these reasons, the Supreme Court rejected a bright line test holding, as some appellate courts have, that transportation workers can never qualify for the exemption from arbitration unless they cross state lines or interact with vehicles that do.

Sixth Circuit Sets Forth the Standard for Preliminary Injunctions in Failure to Bargain Cases

In Kerwin v. Trinity Health Grand Haven Hospital, 171 F.4th 942 (6th Cir. 2026), the Sixth Circuit addressed the standard to be applied in deciding injunction petitions under Section 10(j) of the National Labor Relations Act (NLRA) in failure-to-bargain cases. The case involved a dispute regarding a hospital’s employees’ petition to remove the union and the outcome of an election regarding removal of the union, following which the hospital withdrew recognition of the union and subsequently refused to bargain with the union. The National Labor Relations Board’s regional director issued a complaint against the hospital, which was tried before an administrative law judge. While that matter was pending, the NLRB director petitioned the district court for an injunction under § 10(j) of the NLRA asking a federal district court to order the hospital to resume bargaining during the pendency of the proceedings. 

The district court granted the petition and ordered the hospital to resume bargaining, which it did while filing an appeal with the Sixth Circuit to vacate the injunction. Applying the Supreme Court’s decision in Starbucks Corp. v. McKinney, 144 S. Ct. 1570 (2024), the court listed the four-factor test used to assess whether an injunction may be enforced: The Board must make a “clear showing”  that 1) it is likely to succeed on the merits; 2) it is likely to suffer irreparable harm without an injunction; (3)  the balance of equities favors an injunction; and (4) an injunction would serve the public interest. The Sixth Circuit held that failure to make a clear showing as to any of the four factors defeats the request for enforcement of the injunction. Stating that “the second factor – irreparable harm – ‘is the core of the preliminary injunction,’ without which the Board’s request for relief falls flat,” the court found that the Board failed to make the requisite showing. First, the court noted that under the NLRA the Board has an array of remedies, without the need for an injunction, including an order to bargain in good faith. The Sixth Circuit also rejected the Board’s claim that the absence of an injunction “will erode union support to the point that the union will be unable to bargain effectively in the future,” holding that the Board must clearly demonstrate “certain and immediate” harm and that “speculative or theoretical” assertions do not satisfy the standard for an injunction. Ultimately, the Sixth Circuit held, the Board’s failure to satisfy the long-established elements of irreparable harm required it to dissolve the injunction.

Second Circuit Reverses Collective Action Certification and Notice to Out-of-State Residents

The plaintiffs in Provencher v. Bimbo Foods Bakeries Distrib. LLC, 175 F.4th 180 (2d Cir. 2026), who were distributors and independent contractors in Vermont, brought a putative FLSA collective action in federal district court in Vermont against two companies incorporated in Delaware with their principal places of business in Pennsylvania. The district court granted the plaintiffs’ motion to conditionally certify the collective action and send opt-in notices to potential plaintiffs, including those residing outside Vermont. 

The defendant appealed to the Second Circuit arguing that it lacked personal jurisdiction over the claims of the putative out-of-state plaintiffs. Applying the U.S. Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017), which held that a plaintiff's claims must “arise out of or relate to” a company’s contacts with the forum state, the Second Circuit found that nothing in the record suggested any of the potential out-of-state plaintiffs suffered FLSA violations out of the company’s contacts in Vermont. The court also rejected the comparison between personal jurisdiction in FLSA collective actions and Rule 23 class actions. “In contrast to a class action,” the Second Circuit stated, “an FLSA collective action remains a mosaic of individual claims even after conditional certification.” Accordingly, the Second Circuit reversed the district court’s decision granting collective action certification and notice to potential out-of-state plaintiffs, holding that “before conditionally certifying an FLSA collective action and authorizing notification of potential plaintiffs who may opt in, a district court must ensure its personal jurisdiction over the defendant with regard to the claims of those to be notified.”

Sixth Circuit Grants Summary Judgment to Employer on Plaintiff’s First Amendment Retaliation Claim

Stanalajczo v. Perry, 174 F.4th 968 (6th Cir. 2026), involved claims by a university adjunct dentistry professor who was terminated after sending an e-mail to approximately 1,000 faculty, staff, and students and a complaint to the state Occupational Safety and Health Administration (OSHA) about the university’s personal protection equipment (PPE) requirement. In addition to encouraging all dental school faculty members to submit complaints to OSHA about the PPE, the plaintiff spoke out at a meeting with faculty, students, and administrators, following which one of the school’s directors submitted an internal complaint about his “unprofessional and incendiary” conduct. Following an investigation, and the plaintiff’s refusal to engage in remedial assignments, he was terminated from employment and filed suit in federal district court claiming he was retaliated against in violation of the First Amendment for filing the OSHA complaint and for his speech at the dental school meeting.

The federal district court granted the university administrators’ motion for summary judgment on the plaintiff’s claims. On appeal, the Sixth Circuit emphasized that to prove a First Amendment retaliation claim, the plaintiffs must first establish they spoke on a matter of public, rather than private, concern. Quoting the U.S. Supreme Court, the Sixth Circuit stated: “Speech involves a matter of public concern when it relates to issues of ‘political, social, or other concern to the community’ and is of ‘public import.’” Affirming summary judgment for the school administrators, the court found that neither the plaintiff’s OSHA complaint, nor his speech at the dental school meeting satisfied that requirement.  In both cases the Sixth Circuit concluded, the plaintiff’s complaints and comments were about workplace conditions for the plaintiff and his colleagues and did not relate to political, social or other concerns of the broader community. Accordingly, the court affirmed the district court’s grant of summary judgment for the university administrators.

Ninth Circuit Affirms Summary Judgment for the Employer on Plaintiffs’ Title VII Religious Discrimination and Failure to Accommodate Claims

The plaintiffs in Williams v. Legacy Health, 174 F.4th 1201 (9th Cir. 2026), who were denied exemptions from the employer’s COVID-19 vaccination requirement and terminated for failure to comply, filed suit in federal district court claiming religious discrimination and failure to accommodate in violation of Title VII. The district court granted summary judgment to the employer on undue hardship grounds and the plaintiffs appealed to the Ninth Circuit.

Assessing the plaintiffs’ claims, the Ninth Circuit applied the Supreme Court’s decision in Groff v. DeJoy, 600 U.S. 447 (2023), holding that to establish undue hardship under Title VII the employer must show a substantial burden “in the overall context of an employer’s business.” As an initial matter, the Ninth Circuit stated that the burden ‘can extend to ‘health and safety costs’ and ‘operational burdens’ as well as traditional ‘financial burdens.’” The court found that the employer, a healthcare system that operated eight hospitals, satisfied this burden because granting the employees’ exemption would create a risk of illness to employees, creating staffing issues, as well as a risk of contamination to patients, many of whom had pre-existing conditions that posed an even greater risk. Moreover, the court found that the statistical evidence presented by the employer established that high vaccination rates reduced the overall transmission risk and that there was no effective alternative to vaccination in the healthcare context. Affirming summary judgment for the employer, the Ninth Circuit concluded that there was no reasonable accommodation available to address the employer’s legitimate concerns.

Fifth Circuit Affirms Judgment on the Pleadings for the Employer in ADA Accommodation, Discrimination, and Retaliation Case

The plaintiff in Hayes v. GStek, Inc., 175 F.4th 603 (5th Cir. 2026), an IT systems administrator diagnosed with autism, major depressive disorder, and social anxiety disorder sent his employer a physician’s note and request to telework. The employer allowed the plaintiff to work from home two to three days per week, but after he failed to come into the office and said he needed to work only from home, he was terminated from employment. The plaintiff filed suit for failure to accommodate, discrimination, and retaliation. The district court granted the employer’s motion for judgment on the pleadings and the plaintiff appealed to the Fifth Circuit, which agreed with the district court that the plaintiff failed to establish a prima facie case on all his claims.

As to the plaintiff’s accommodation claim, the court reiterated the principle that to prevail on a failure to accommodate claim under the ADA, a plaintiff must establish that there is an available reasonable accommodation that would enable him to perform the essential functions of his job. In this case, the Fifth Circuit found that in-person attendance was an essential function of the plaintiff’s job and daily telework was therefore not a reasonable accommodation.  Citing a Seventh Circuit case the court noted that “[f]ull-time teleworking ‘is rarely a reasonable accommodation.’”

For the same reasons, the plaintiff also failed to prove that he was discriminated against due to his disability because he was unable to establish that he was qualified for the job, which is an essential element of a disability discrimination claim. The plaintiff also could not prevail on his retaliation claim because he could not establish a causal connection between his request for an accommodation and his termination. The Fifth Circuit held that the three-month period between the plaintiff’s initial request for an accommodation and his termination was insufficient to establish temporal proximity. Moreover, the court stated, the plaintiff’s inability to perform the essential functions of his job defeated his ability to prove causation for retaliation.

Fifth Circuit Vacates NLRB’s Decision That Employee Termination Violated the NLRA

In a brief and succinct decision, Starbucks Corp. v. Nat’l Lab. Rels. Bd., 175 F.4th 627 (5th Cir. 2026), the Fifth Circuit vacated and remanded the NLRB’s decision that the termination of an employee for a series of infractions violated the NLRA. The employee, a union organizer and shift supervisor, was terminated from employment for using extreme profanity toward his supervisor and a coworker with a documented medical condition. He also failed to complete closing tasks while on final warning, and improperly opened mail addressed to the company from the NLRB.

The Fifth Circuit held that in considering whether an employer would have disciplined or terminated an employer but for protected union-related activities, the NLRB must consider “contradictory evidence or evidence from which conflicting inferences could be drawn.” The Board failed to do so in this case. For example, the Board did not consider that no other employee had used such extreme sexist profanity targeted at coworkers or that no other shift supervisor failed to complete closing tasks while on final warning.

A concurring opinion found the Board’s decision “starkly deviated from fairminded, law-based adjudication” and therefore should be vacated but not remanded to the NLRB to be given “a second chance to do the right thing.”

Sixth Circuit Assesses Required Elements of FMLA Interference and Retaliation Claims

Following his termination from employment approximately one month after inquiring about the process for requesting FMLA leave, the plaintiff in Paris v. MacAllister Mach. Co., Inc., 175F.4th 787 (6th Cir. 2026), filed suit in federal district court alleging FMLA interference and retaliation, among other things. The plaintiff had a history of disciplinary incidents and negative performance reviews and ultimately was given a last chance final warning. Although the plaintiff told his contact in the Human Resources department that he was experiencing anxiety, stress, drinking problems, loss of sleep, appetite, and weight, and “just sheer mental anguish” because he feared being singled out and fired, he did not see a mental health professional or submit the FMLA request form.

The district court granted summary judgment to the employer on the plaintiff’s FMLA claims, and the plaintiff appealed to the Sixth Circuit. Assessing the plaintiff’s FMLA interference claim, the Sixth Circuit stated that to establish a prima facie case of FMLA interference an employee must establish, among other things, a serious health condition that “involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The plaintiff in this case could not satisfy either of these requirements and therefore the Sixth Circuit affirmed the district court’s grant of summary judgment for the employer on this claim.

The Sixth Circuit disagreed with the district court’s reasoning regarding the plaintiff’s FMLA retaliation claim, however. The district court concluded that the plaintiff did not engage in “protected activity,” which is one of the requirements for a retaliation claim, because he did not file an FMLA request but only requested information about the process for obtaining FMLA leave. Citing a prior Sixth Circuit decision, the Sixth Circuit stated that “an FMLA retaliation claim ‘arises when an employer takes an adverse employment action against the employee for exercising or attempting to exercise a right protected by the FMLA.’”  Based on this language, the court held, “the term ‘protected activity’ under the statute must include an employee’s ‘first step’ in requesting leave.” Nevertheless, the Sixth Circuit affirmed summary judgment for the employer on the plaintiff’s retaliation claim. Despite the close proximity in time between the employee’s request for information about FMLA leave and his employment termination, the court found that the employer satisfied its burden of showing that its reasons for the employee’s termination were legitimate and nondiscriminatory and the plaintiff failed to satisfy his burden to show that the employer’s reasons were “in reality a pretext to mask discrimination.”

Seventh Circuit Affirms Summary Judgment for Employer in Race Discrimination Disparate Pay and Failure to Promote Case

The plaintiff in Wilson v. AIM Specialty Health, __ F.4th __ (7th Cir. May 27, 2026), a Black woman, filed suit in federal district court claiming that some of her non-Black colleagues received higher starting salaries and were promoted more quickly. The district court granted summary judgment for the employer and the plaintiff appealed.

As to the plaintiff’s disparate pay and failure to promote claims, the Seventh Circuit found that the plaintiff failed to present evidence of comparable non-Black employees who received higher starting salaries and were promoted more quickly. The court found that the other employees the plaintiff claimed were comparators had more prior experience than the plaintiff when they began working for the employer and were top performers overseeing a broad range of complex projects, including supervising others. Moreover, the Seventh Circuit held, even if the plaintiff had provided appropriate comparator evidence, to support her claims under Title VII, the plaintiff would have to provide evidence that the employer’s stated explanations for its actions were untrue and were due to discrimination, which the plaintiff was unable to do. Accordingly, the Seventh Circuit affirmed summary judgment for the employer.