I was recently asked if an employer may require an employee who was taking leave under the Family and Medical Leave Act (“FMLA”) to return to work after the employee was seen working his second job—refereeing school basketball games—while on leave. In this particular case, the employee was taking FMLA leave to care for his daughter, who had a serious health condition.
On December 4, 2017, the Supreme Court of the United States heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, more popularly known as the “gay wedding cake case.” At issue in this case are competing interests in First Amendment freedoms of expression and religion and the same-sex couples’ rights to equal, nondiscriminatory treatment.
From the time Congress passed the Civil Rights Act of 1964 until earlier this year, federal courts have consistently held that the Act’s protections against employment discrimination did not apply to discrimination on the basis of sexual orientation. However, in March, the Seventh Circuit Court of Appeals (which covers Wisconsin, Illinois, and Indiana) became the first court to rule the other way, holding that Title VII of the Civil Rights Act’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation. What has occurred in federal courts in the wake of that decision, however, has only muddied the waters.
The National Labor Relations Board (the “Board”) continues its focus on overly-broad work policies – now in a non-union workplace – with a recent decision against Chipotle Mexican Grill. Although the Board found Chipotle violated the National Labor Relations Act (the “Act”) by (1) maintaining overly-broad social media and work policies, (2) ordering an employee to quit circulating a petition, and (3) firing the employee when he refused to do so, it found the employer did not violate the Act by asking the employee to remove certain tweets from his Twitter account. This case provides additional guidance on what is and is not permissible in work rules, particularly as they apply to social media posts by employees.
The West Virginia Supreme Court of Appeals recently reversed itself and adopted the “substantially younger” rule in cases of age discrimination under the West Virginia Human Rights Act (“WVHRA”). Previously, in order to prove age discrimination, an employee in the protected class—40 years old or older—had to show that he or she was replaced by or treated differently than a similarly-situated employee outside of the protected class—under 40 years old. This was the “over 40/under 40” rule. Now, an employee may prove age discrimination by showing evidence of a comparator employee who is substantially younger than the plaintiff, even if that comparator employee is also over 40 years old.
On January 29, 2016, the Equal Employment Opportunity Commission (“EEOC”) announced that it was proposing a change to the reporting requirements of annual EEO-1 reports, which would require covered employers to report information on their employees’ pay. If implemented, the changes will take effect with the September 2017 report. The purpose of this proposed change is to assist the EEOC and the Department of Labor (“DOL”) in identifying possible pay discrimination.
When dealing with their employees’ needs for accommodations due to religious, disability, or family leave reasons, it’s necessary for employers to know some personal information about their employees. But, simply asking for information can be considered a violation of certain employment laws. What’s an employer to do?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) is unique among employment laws, in part due to the affirmative obligations it puts on the employer. For example, when an employee returns to work after having taken more than 90 days of leave under USERRA, it is not enough that the employer gives the employee his or her old job back. Instead, the employer must place the employee in the position he or she likely would have had but for the military service. So, suppose an employer typically advances employees based upon length of employment. And during the one year an employee was serving in the military, the employee would have advanced to another position. Under USERRA, when the employee returns, he is not to be put back in his old position, but in the position he would have held had his employment not been interrupted by military service. This is known as the “escalator” position.