Employers likely recall the ill-fated federal overtime rule that was proposed during the Obama administration and was struck down last year. Even though the changes to the Fair Labor Standards Act’s overtime salary threshold never came to fruition at the federal level, Pennsylvania employers should be prepared for possible changes at the state level.
Employers defend harassment claims not involving a loss of tangible employment benefits (i.e., hiring/firing, promotion, reassignment, changes in benefits) with a two-prong defense. First, they show that they exercised reasonable care to avoid such conduct and eliminate it if it occurs (an effective policy and prompt corrective action). Second, employers show that the complaining employee failed to act with reasonable care to take advantage of the policy. Employers are successful in obtaining summary judgments in such scenarios where the employee flounders on the second prong by either totally failing to use the policy or doing so belatedly – even as short as two to four months after the incident occurred. Complaining employees try to keep their claims alive, often by claiming that their failure to promptly invoke the harassment policy was not unreasonable. A generalized fear of retaliation, unsupported by specific evidence, has not carried the day for employees, and employers have successfully disposed of such cases on summary judgment.
Last week, the Third Circuit released an opinion in Minarsky v. Susquehanna County, et al., in which it reversed the district court’s award of summary judgment to Susquehanna County and remanded the case for a jury trial on the merits. What is significant about this opinion is the impact that the #MeToo movement has seemingly had on the decision. In a page-long footnote, the Court discusses the #MeToo movement, the pervasiveness of sexual harassment in the workplace, and comments on why sexual harassment victims may not, even with proper mechanisms in place, reasonably be willing to report harassment.
It’s not uncommon to make a job offer conditional on the results of a pre-employment background check. But, how often do you deny an otherwise good job applicant a job because something unexpected came back in the background check? How do you go about informing this applicant—who you told had the job (subject to the results of the background check)—that he or she is now not going to be considered for employment?
Despite the “#MeToo” Movement, it’s still not uncommon for workers to make comments concerning a co-worker’s sexual practices. Nor is it uncommon for employers to successfully defeat sexual harassment claims based on such conduct by citing the well-established case law that discrimination statutes do not mandate a pristine work environment – shop-talk is not actionable.
In a win for employers in the State of West Virginia, the Supreme Court of Appeals of West Virginia overturned a lower court’s decision that an employment arbitration agreement was unenforceable in Hamden Coal, LLC v. Varney. The lower court agreed with the employee on every relevant issue, finding that arbitration claims are viewed differently in an employment context, that the agreement was a contract of adhesion, that the agreement lacked consideration, that the agreement was unconscionable, and that the employee’s claims fell outside the agreement. The Supreme Court, however, overturned each finding and took the additional step of directing the court to enter an order dismissing the civil action and compelling arbitration.
California’s intermediate appellate state court recently ruled in Terris v. County of Santa Barbara that a county employee failed to demonstrate that alleged vulgar, derogatory remarks about homosexuals made by her former employer’s CEO were connected to her termination of employment. As a result, the court upheld summary judgment in favor of the employer and against the former employee in her wrongful termination action.
The area of LGBT rights in the workplace has garnered a great deal of attention in recent years as a split has grown among the courts and among federal agencies as to whether Title VII prohibits sexual orientation discrimination. Under the Obama Administration, the Department of Justice argued that Title VII’s prohibition on sex discrimination also included sexual orientation and gender identity. Recently, however, the Trump Administration’s Department of Justice filed an appellate brief in the Court of Appeals for the Second Circuit in which it argued that Title VII does not apply to sexual orientation.