Employment Law News

Blog Archives

2014

EEOC Updates Pregnancy Discrimination Guidelines

Sarbanes-Oxley Retaliation Update

Temporary Condition Under the Americans with Disabilities Act

2013

No Mixed-Motive Instructions on Title VII Retaliation Cases

Non-Compete Update: Blue Penciling

Who is a Supervisor Under Title VII?

EEOC Updates ADA Disability Guidance for Epilepsy and Diabetes

FLSA Collective Action Update

Can a Successor Company Be Held Liable for a Predecessor's Employment Claims?

Can Your Employer Claim Ownership of Your Social Media Accounts?

Does the FMLA Provide for a Light Duty Return to Work?

Discrimination Protection for Jobless Applicants

Can an Employer Require Random Alcohol Testing?

Are Credit Checks for Job Applicant's Discriminatory?

Obama Administration to Push Minimum Wage Increase

New FMLA Rules on the Horizon

2012

Workplace Discrimination Trends

U.S. Supreme Court to Review Causation Standard in Title VII Retaliation Cases

 Virginia Supreme Court Holds That Supervisors May Be Individually Liable in Wrongful Discharge Claims for Violations of Public Policy.

Anti-Retaliation Provisions in Handbooks

New Developments in Right-To-Work laws.

EEOC Announces Strategic Enforcement Plan

 

 

 

NLRB ISSUES SOCIAL MEDIA POLICY DECISION

Equating social media to the modern day “water cooler,” the NLRB considered whether an employer can publish a broad based “Social Media Policy” that substantially restricts an employee’s private use of internet based platforms such Facebook or Twitter for any work related commentary.  In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec 14, 2012), the NLRB again affirms its position that ambiguous and over-broad social media restrictions and disciplinary actions violate the National Labor Relations Act.   In general, the NLRA protects the employees’ right to engage in “concerted” activities, which include group discussions about their mutual terms and condition of employment.  An employer cannot chill such speech by enforcing strict prohibitions on all derogatory publications about the company or its employees.  If an employer chooses to publish a social media policy, it should be narrowly tailored to limit publications than infringe about upon well-established employee infractions, such as discriminatory harassment, threats of violence, or disclosure of sensitive business (as opposed to personal) information.

PROOF OF DAMAMES FOR NON-COMPETE BREACH

As affirmed by the Virginia Supreme Court, “When a non-compete clause is breached, the non-breaching party is entitled to the benefit of the bargain: to put the party injured in the same position, as far as money can do it, as he would have been if the contract had been performed.” Lost profits are available but must be proved with reasonable certainty, as opposed to speculation. Evidence of subsequent profits from a competitor that benefited from the breach of the Non-Compete may be sufficient to prove lost profits, provided “that the profits can be sufficiently tied to the injured party.” See Preferred Systems Solutions, Inc. v. GP Consulting, LLC, (Va. Sup. Ct. 2012).

SUPERVISORS MAY BE HELD LIABLE IN VIRGINIA WRONGFUL DISCHARGE CLAIMS

The Virginia Supreme Court holds that supervisors may be individually liable for tort claims of wrongful discharge. The Fourth Circuit originally certified the issue to the Virginia Supreme Court, questioning whether supervisors who participate in firing decisions can be held liable under State tort claims of wrongful discharge. Under Virginia common law, a company or individual who discharges an employee in violation of public policy may be liable for their conduct.  In the case at issue, the plaintiff asserted that she was terminated by her supervising physician after she refused to engage in an adultery, an illegal act under Virginia law. See VanBuren v. Grubb, (Virginia Supreme Court 2012).

DISCRIMINATORY DENIAL OF SEVERANCE BENEFIT MAY SERVE AS ADVERSE ACTION UNDER TITLE VII

The Fourth Circuit holds that a female employee may pursue a claim for gender discrimination on the basis that she was offered a severance package that was less lucrative than the severance benefits offered to comparable male employees. See Gerner v. County of Chesterfield , Fourth Circuit (2012)

INTERNAL COMPLAINT REGARDING OVERTIME SUFFCIENT FOR PROTECTION FROM RETALIATION

In somewhat of a reverse from earlier precedent, the Fourth Circuit rules that an employee's internal complaint regarding violations of the overtime provisions of the Fair Labor Standards Act affords protection from subsequent employer retaliation. Prior to this case, the Fourth Circuit had differed with other Circuits, holding that the employee was protected only in the event of lawsuit or formal complaint filed with the Department of Labor. See Minor v. Bostwick Laboratories, Fourth Circuit(2012).

CLARIFIED ENFORCEMENT GUIDELINES FOR NON-COMPETES

The Virginia Supreme Court provides new guidance regarding the enforcement of Non-Compete Agreements. Reversing prior precedent, the Court holds that a restrictive covenant prohibiting employment “in any capacity” with a potential competitor is over-broad. As a result, Employers are advised to draft narrowly tailored provisions that only seek to limit an employee’s right to compete against the ex-employer in a capacity that is similar to the role performed for the prior employer. See Home Paramount Pest Control Companies, Inc. v. Shaffer, et al., (Va. Sup. Ct. 2011).

MUNICIAL EMPLOYER VIOLATED TITLE VII BY DISCARDING RACIALLY DISPROPORTIONATE TEST RESULTS TO THE DETRIMENT OF OTHER EMPLOYEES.

In this reverse discrimination case the Court found that fear of litigation alone did not justify a City’s reliance on race to the detriment of Fire Department employees who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII. See Ricci v. DeStefano, U.S. Supreme Court (June 2009).

MIXED MOTIVE INSTRUCTION HELD INAPPLICABLE TO ADEA AGE DISCRIMINATION CASE

The U.S. Supreme Court held that ADEA plaintiffs in age discrimination cases are not entitled to a "mix motive" instruction whereby the employee need only show that age was a "motivating" factor in an adverse employment decision, which is available as a burden of proof in some Title VII discrimination cases. Rather, under the ADEA, a plaintiff retains the ultimate burden of proving that the adverse action would not have occurred "but for" plaintiff's age. See Gross v. FBL Financial Services, Inc.. U.S. Supreme Court (June 2009).

AMERICANS WITH DISABILITIES ACT AMENDMENTS TO TAKE EFFECT ON JANUARY 1, 2009.

In an effort to solidy a variety of coverage issues regarding the definition of individuals with disabilities, Congress has enacted the The ADA Amendment Act of 2008. As a result, more individuals should be entitled to avail themselves of the accommodation and anti-discrimination protections of the statute. The amendments will reverse prior Cout decisions holding that persons who are able to control or mitigate their disabling conditions through medication or medical equipment are not technically disabled.

EMPLOYER RETAINS BURDEN OF PROVING A REASONABLE FACTOR OTHER THAN AGE AS AN AFFIRMATIVE DEFENSE TO AN AGE DISCRIMINATION DISPARATE IMPACT CASE

See Meacham v. Knolls Atomic Power Lab., U.S. Supreme Court (2008).

EMPLOYEE DOES NOT NEED TO MAKE A SPECIFIC REQUEST FOR LEAVE UNDER FMLA TO GAIN PROTECTION UNDER STATUTE

An employee's general request for leave for an incident or condition that an employer has reason to believe would be covered by FMLA may be considered a request for FMLA, prompting the employer to notify the employees of their rights and obligations under the stature. See Krenzeke. Alexandria Motor Cards, Inc. Fourth Circuit, August 15, 2008.

ISOLATED RACIAL INCIDENT HELD INSUFFICIENT TO FORM HOSTILE WORK ENVIRONMENT

The Fourth Circuit holds that an employee’s complaint regarding a single racial comment by a co-employee, which was not directed towards the complaining employee, was insufficient to constitute a protected complaint of a “hostile work environment,” sufficient to form the basis for the employee’s complaint of unlawful retaliation. In rendering this decision, the Fourth Circuit continues to draw a distinction between isolated acts, which though offensive, are not deemed to be the sort of severe or pervasive conduct that create a hostile work environment. See Jordan v. Alternative Resources Corporation and IBM, Fourth Circuit  (2006).

FEDERAL ADMINISTRATIVE EEOC/OFO DECISIONS NOT BINDING IN SUBSEQUENT FEDERAL LITIGATION

In reversing prior precedent, the Fourth Circuit now holds that federal employees who obtain a finding of liability for discrimination through the EEOC/OFO administrative process can no longer rely on this finding in seeking additional relief through a federal Court action. Previously, a federal employee could seek additional damages in federal Court while operating on the assumption that liability already had been established through the administrative determination. Under the new standard, employees who prevail initially in the EEOC/OFO process could risk losing their entire claim should they elect to pursue greater damages through a Court action. See Laber v. Francis Harvey, Secretary of the Army, Fourth Circuit (2006).

PREGNANCY & SEX DISCRIMINATION CASE REINSTATED DESPITE EMPLOYER’S HIRING OF A REPLACEMENT EMPLOYEE FROM SAME PROTECTED CLASS.

Although a plaintiff, in order to establish a prima facie case of discrimination, normally must show that an employer hired a replacement from outside of plaintiff’s protected class, the Fourth Circuit recognizes several exceptions to this general principle. One such exception occurs where different persons make contested firing and replacement hiring decisions. In such case, the hiring of a similarly situated employee is of no probative value for the employer’s non-discrimination. Accordingly, where hiring and firing decision were made by separate persons, a plaintiff need not provde that she was replaced by someone outside of her protected class in order to set forth a prima facie case under Title VII or the ADEA. See Miles v. Dell, Incorporated, Fourth Circuit, (2005).

EMPLOYEES CANNOT WAIVE RIGHTS UNDER FMLA WITHOUT DOL APPROVAL

The Fourth Circuit upholds a Department of Labor regulation prohibiting the waiver of FMLA claims. The impact of this decision means that even though an employee may sign a broad waiver agreement as part of a settlement or severance agreement, the waiver will not necessarily prohibit the employee from pursing FMLA claims through a Court action, unless the DOL or a Court initially approves the waiver. See Taylor v. Progress Energy, Incorporated, Fourth Circuit (2005).

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