Like most statutes prohibiting discrimination, Title VII also outlaws retaliation so that individuals will not be inhibited from asserting claims under the statute. Thus, Title VII prohibits retaliation against anyone who opposes an act made unlawful by it. The question, therefore, becomes what constitutes opposition to a practice unlawful under Title VII and to whom may such opposition be addressed?
For years, employers in the United States have become familiar and worked with federal, state, and local laws that prohibit harassment and discrimination based on certain specific characteristics, such as those set forth in Title VII of the Civil Rights Act. Increasingly, employers are having to deal with sometimes more subtle actions by employees and supervisors that are not directly related to any particular characteristic but may be just as, or more, destructive in the workplace. This activity is called bullying, and employers need to be aware of its high costs and the steps to prevent this activity in their workplaces.
On May 21, 2015, the Fourth Circuit Court of Appeals clarified a plaintiff’s burden of proof in retaliation cases under Title VII, making it more challenging for employers in the Fourth Circuit to dispute a plaintiff’s prima facie case of retaliation. A prima facie case is the legally sufficient amount of proof of the elements that form a claim.
Recently, Pittsburgh’s City Council made headlines by passing the Paid Sick Days Act, requiring all employers within the City to provide paid sick leave to employees. Pittsburgh is now the 20th city to enact such a law. This new requirement is expected to impact over 50,000 employees within the City.
Recently, the Third Circuit Court of Appeals – which covers Pennsylvania and New Jersey — ruled in Hansler v. Lehigh Valley Hosp. Network that if an employer does not permit an employee seven days to cure an insufficient medical certification, the employer may have interfered with the employee’s rights under the Family Medical Leave Act (“FMLA”). Medical certifications are one of the trickiest areas for employers when it comes to FMLA compliance, so let’s take a deeper look at this case.
HR professionals and lawyers in West Virginia know that our State is an at-will employment state, meaning you can discharge an employee for a good reason, a bad reason, or any reason at all, as long as it is not done for an illegal purpose (e.g., discrimination, retaliation, or in contravention of some public policy). While the at-will employment doctrine is alive and well in the private sector in the State (in some form or another), the same is not true for public employees. Many public employees are afforded additional protections in the areas of discipline and discharge that private sector employees simply are not afforded absent a collective bargaining agreement, an employee-friendly handbook, or other contract. Whether public employees are at-will employees or have this protected status depends upon how they are classified and under which statutory scheme they are employed. This post will generally cover what additional protections certain public employees are afforded that their at-will counterparts in both the public and private sectors are not.
Over the last several years, there has been quite a push to broaden who is considered an employee – as well as who is considered an employer – under relevant federal (and even state) laws. For instance, the Department of Labor has stepped up its efforts in singling out employers who misclassify workers as independent contractors. Their recent memo on this subject – which we wrote about here – is the most recent evidence of that. The National Labor Relations Board has also been active in this general area, issuing complaints against McDonalds arguing that a number of its franchisors have as much control over employees as the franchisees do, and therefore are just as legally responsible for ensuring compliance with certain employment laws. These arguments have been advanced by more than just government agencies, however. They have been made by private plaintiffs under anti-discrimination law, too.
Recently, the National Labor Relations Board (“NLRB”) officially overruled longstanding protections against disclosure of witness statements taken by employers during an internal workplace investigation. Since 1978, the Board has maintained that the general duty on an employer to furnish information, pursuant to Section 8(a)(5) of the NLRA, “does not encompass the duty to furnish witness statements themselves” to a union. Anheuser-Busch, Inc., 237 NLRB 982, 984-85 (1978). Thus, a bright-line rule was born which protected the confidentiality of witnesses who chose to cooperate with internal workplace investigations.
When President Obama directed the Department of Labor last year to make its Fair Labor Standards Act overtime regulations simpler for businesses and workers to understand, many observers expected the agency to propose comprehensive revisions to the confusing “duties tests.” After all, the duties tests, which are part of the criteria an employer must satisfy to show that an employee is exempt from FLSA’s overtime and minimum wage requirements, are famous for their imprecision and indifference toward the realities of the American workplace.
With all the recent media coverage of Bruce Jenner’s transition to Caitlyn Jenner, employers should be aware that the issue of transgender employees in the workplace is becoming more and more common. Regardless of one’s view on the subject, employers need to realize that they can find themselves in hot water by improperly dealing with a transgender employee. A recent case filed by the EEOC illustrates this problem.