Employers often are leery of retaliation claims, and rightfullly so, since they are among the most dangerous to defend in court. Typically, however, employers confront allegations of retaliation only from current or just-made-former employees. Now, in a recent decision issued by the Fourth Circuit, even applicants can go the retaliation route in the right circumstances.
As West Virginia employers are undoubtedly aware, there is a cause of action in the state commonly known as a “Harless claim” for wrongful discharge when an employee can show that his or her discharge contravenes some substantial public policy of the State of West Virginia. In Brown v. City of Montgomery, et al., the West Virginia Supreme Court of Appeals recently issued a decision holding that it is a violation of a substantial public policy for an employer to fire an employee for refusing to retaliate against another employee who has filed a discrimination claim against the employer.
Imagine this scenario: One of your employees is taking leave under the FMLA. You suspect the employee has misrepresented the state of his or her condition to fraudulently obtain protection under the FMLA and is really using the time off for personal reasons unrelated to any illness or injury. In fact, several of the employee’s co-workers have reported to you that they have observed the employee out shopping on days when he or she had supposedly used FMLA-protected leave. They’ve also told you that some of the employee’s Facebook posts and photos portray activity which seems inconsistent with their alleged illness or injury. Since the FMLA prohibits employers from interfering with an employee’s FMLA rights and from retaliating against employees who exercise their rights to leave, there’s nothing you can do unless you care to find yourself in court, right?
Employers often face the issue of whether or not they can discipline an employee who is already on some kind of medical leave. Despite how common that situation may be, many employers think they are unable to take action in that situation. While the exact answer is always going to be resolved on a case-by-case basis, employers aren’t always as hamstrung as they may feel.
The recent unveiling of the new 5S and 5C iPhone models isn’t the only way Apple has been making headlines lately. Recently, two former Apple store employees filed a class action lawsuit against the tech giant, alleging violations of the Fair Labor Standards Act (FLSA) and seeking millions of dollars for unpaid wages and overtime compensation. The most interesting part of the suit is that it isn’t based on a typical FLSA violation, such as the failure to properly compensate employees for their breaks.
While any medical testing for employees or job candidates may invite scrutiny under the Americans with Disabilities Act (“ADA”), many employers don’t always view drug and alcohol screening the same way as they do a typical medical test. While overlooking that connection could be a mistake, not all the skies in this area are gray, as a recent decision from a federal district judge in Pennsylvania illustrates.
When employers are hauled into Court and sued for discrimination after already defending a charge for the same conduct in front of the EEOC or state human rights agency, they usually have a pretty good idea what they are defending. Sometimes employees try to play hide-the-ball with their allegations, however, and that makes those suits harder to defend. Fortunately for employers, at least one Court has taken a stand against that kind of subterfuge.
On October 4, 2012, the United States Court of Appeals for the Fourth Circuit – based in Richmond, Virginia – held oral arguments on the road at the West Virginia University College of Law in Morgantown, WV. While doing so, the Court heard, and later decided, a noteworthy Americans With Disabilities Act case, Reynolds v. American National Red Cross National Headquarters, et al.
Within the last year or so, the National Labor Relations Board (NLRB) has taken a very active role in scrutinizing employer social media policies to make sure they aren’t reasonably construed to restrict employee concerted activity. Starting several months ago, they expanded that scrutiny to examine at-will disclaimers and other employer policies for the same purpose. Now, the Board has taken things to an even further level.
Recently, the Fourth Circuit Court of Appeals – which covers West Virginia – issued an important discrimination opinion that all employers in the region need to be aware of.
In Gerner v. County of Chesterfield, Civ. Action No. 11-1218 (4th Cir. Mar. 16, 2012), the Fourth Circuit Court reinstated the lawsuit of a woman who alleged that her former employer unlawfully discriminated against her by offering her a less favorable severance package than it offered to male employees holding similar positions. In doing so, the Court held that Title VII protects both current and former employees from discriminatory adverse employment actions – including the offering of severance benefits, regardless of whether such benefits are furnished under a contractual obligation or offered only voluntarily.