As the New Year begins, a late 2013 decision from the Fifth Circuit Court of Appeals – which covers Texas, Louisiana, and Mississippi – remains in the spotlight.
So you think crude, vulgar comments and horseplay by a male, heterosexual supervisor directed to a male, heterosexual iron worker at an all-male construction site cannot form the basis of a sexual harassment complaint? Think again. A deeply divided court for the Fifth Circuit Court of Appeals—which covers Texas, Louisiana, and Mississippi—recently found that sexual epithets and vulgar gestures could support a verdict against a company for “gender-stereotyping harassment.” Although the decision currently only applies to employers within the Fifth Circuit, because the claim was brought by the EEOC, employers everywhere should be on guard, especially when one considers the sorts of hypothetical situations the EEOC’s lawyers said could constitute viable Title VII actions.
We in the Human Resources and employment law field have an alphabet soup of federal statutes to keep on top of: FLSA, FMLA, ADA, ADAAA, and ADEA, among others. But there’s a relatively young law that you may not be aware of, but should be—GINA. GINA is the Genetic Information Nondiscrimination Act of 2008.
Just because your employees have agreed to settle any disputes through arbitration rather than a lawsuit doesn’t mean that they actually will. Despite clear arbitration agreements, employees sometimes try to get their day in court, subjecting the employer to lengthy and expensive litigation. Generally, the argument for avoiding the arbitration agreement goes something like this: “I know that I agreed to arbitration, but this claim is not subject to my agreement.” A federal district court in Ohio recently shot this argument down, holding that the plaintiff-employee was bound to her arbitration agreement. Furthermore, the fact that the employee alleged a violation of the Family and Medical Leave Act (FMLA) did not matter. The court held that FMLA claims are arbitrable.
Although plaintiffs’ lawyers like to think that an employee can get around the employers’ workers’ compensation immunity easily by making a “deliberate intent” claim, the West Virginia Supreme Court of Appeals recently affirmed that it takes more than just pleading that there was a specific unsafe working condition in order to prevail on such a claim. In a complete victory for the employer, the Court also affirmed that a mere clerical error on an employee’s unemployment compensation paperwork is not sufficient evidence to show that the employer discharged the employee in retaliation for filing the workers’ compensation claim.
The Fourth Circuit Court of Appeals, which covers West Virginia, Virginia, Maryland, and the Carolinas, recently held that maintaining a policy that provides light duty work for certain circumstances—but not pregnancy—is not sex discrimination under Title VII of the Civil Rights Act of 1964. The court also held that the employer did not violate the Americans with Disabilities Act (ADA) by not granting the pregnant employee light duty work.
What’s an employer to do? The courts have held that an employee handbook can create an employment contract unless it has a specific disclaimer that the employer maintains an employment at-will policy. On the other hand, the National Labor Relations Board (“NLRB”) has found employers guilty of unfair labor practices because it determined that an at-will disclaimer chilled employees’ rights to organize and enter into collective bargaining agreements. Recently, the NLRB’s Office of General Counsel issued two Advice Memorandums that offer much-needed guidance to employers wishing to include at-will employment disclaimers.
We recently discussed here the National Labor Relations Board’s (the Board) first-ever ruling on employees’ social media postings. Now, three weeks after its initial decision, which found that Costco’s policies regarding social media were overbroad and could restrict employee activities protected by the National Labor Relations Act, the Board has issued another decision on social media. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, the NLRB gave employers a modest win.
With the wars in Iraq and Afghanistan winding down, and more and more wounded veterans of those conflicts returning to the workforce, employers would be well advised to familiarize themselves with their responsibilities to disabled veterans. While most employers are familiar with the requirements of the Americans with Disabilities Act (ADA), you should also be aware of the similar, but sometimes more stringent, provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Although both acts impose requirements on employers to accommodate those with disabilities, there are a few differences.
One day after the two-year anniversary of the Upper Big Branch mine explosion, the federal Mine Safety and Health Administration (MSHA) released changes to its regulations pertaining to examinations of coal mines. Under the new regulations, operators must record the actions taken to correct certain violations that mine examiners discover during preshift, supplemental, on-shift, and weekly examinations. Previously, mine operators had to look for the violations during their examinations but did not necessarily have to correct them at that time.