Tag Archives: Employment Law

Employer’s Religious Beliefs vs. Employee Discriminatory Termination. Who Wins?

14 Thursday Apr 2016

Posted by in EEOC, Employment Law, Gender Discrimination, Religious Discrimination

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Can an Employer’s Religious Belief Defeat a Discriminatory Firing? By Jason Shinn, Michigan Employment Law Advisor

http://bit.ly/1RXE7gy

Can an employer’s religious beliefs defeat an otherwise discriminatory termination? Employers in Michigan may soon have much-needed guidance on this issue based on an employment discrimination case filed by the Equal Employment Opportunity Commission (EEOC) in Federal District Court in Michigan.

Specifically, the EEOC filed a lawsuit against RG & GR Harris Funeral Homes, Inc. In 2013 over its decision to fire a transgender funeral director (EEOC v RG & GR Harris Funeral Homes Complaint).

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Sixth Circuit Takes a Look at Employee’s Age, Race, and Sex Discrimination Claim.

27 Saturday Feb 2016

Posted by in 6th Circuit Court of Appeals, Employment Law, Gender Discrimination, Race Discrimination, Wrongful Termination

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Dis-Orderly Conduct: Hospital Security Guard Fired After Incident With Psychiatric Patient Cannot Advance Discrimination Claims, by Alexis B. Kasacavage, Bingham Greenebaum Doll, LLP Blog  

http://www.lexology.com/library/detail.aspx?g=729cc33f-832f-49e3-97f6-7a1c3c8f1997

Interesting analysis on how the courts came to the same conclusion but for different reasons. -CCE

 In Loyd v. Saint Joseph Mercy Oakland, et al., the Sixth Circuit recently upheld a Michigan district court’s decision to dismiss a 52-year-old African-American female security guard’s age, race and sex discrimination claims arising from her discharge following an incident with a combative psychiatric patient at the hospital where she worked.

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Employer’s Motion for Preliminary Injunction is Denied in Non-Compete Agreement Case.

05 Tuesday Jan 2016

Posted by in Employment Law

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Dissecting an Injunction Hearing for Enforcing a Non-Compete Agreement, by Jason Shinn, Michigan Employment Law Advisor

http://bit.ly/1OJ90Wo

In non-compete lawsuits, whether a preliminary injunction should be issued is a critical battle that in large part determines the direction of the lawsuit. For this reason, a recent decision denying a former employer’s motion for injunctive relief in a non-compete enforcement action provides critical insight for companies and individuals. . . .

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Houston Law Firm Fires Pregnant Employees.

18 Friday Sep 2015

Posted by in Arbitration, EEOC, Employment Contracts, Employment Law, Gender Discrimination, Law Office Management, Pregnancy Discrimination

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Wayne Wright Fired Another Pregnant Worker, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/q57966e

A law firm in Houston, Texas, fired a female employee because she became pregnant. The employee filed a charge against the firm with the EEOC, and then sued the firm. You would think that, if the firm somehow missed that this was an employment no-no, this experience educated management at the firm.

Unfortunately, that was not the case. The firm, which has offices in several locations, fired a paralegal from its El Paso firm when she became pregnant. The paralegal sued the firm, but this one has a twist. The firm invoked an arbitration agreement.

The matter went up to the El Paso Court of Appeals, which reversed the trial court. The paralegal’s case will go to arbitration. Why wasn’t this a slam dunk against the firm? -CCE

A Different Kind of Employment Contract.

09 Wednesday Sep 2015

Posted by in Boilerplate Forms, Contract Law, Employment Contracts, Employment Law

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The Employment Contract Between Bilbo Baggins and the Dwarves, by Louis J. Sirico, Jr., Legal Skills Blog

http://tinyurl.com/qdt9krl

Louis J. Sirico, Jr., posted this interesting observation about employment contract law. If you have not read the book or seen the movie, The Hobbit, by J.R.R. Tolkien, this example is going to sound a bit odd.

Before Bilbo Baggins is hired by dwarves to join a quest to conquer a dragon and take back a mountain full of gold, he must sign an unique employment contract. In the book, Mr. Tolkien wrote a fifty-three word employment contract. It is easy to read and understand.

In the movie, the director wanted something more dramatic. The writer took on the challenge and looked to real contracts including his own. The result is a doozy. -CCE

Fifth Circuit Reverses District Court On Termination of Temporary Employees.

24 Monday Aug 2015

Posted by in 5th Circuit Court of Appeals, Employment Law, Litigation, Summary judgment, Workers' Compensation, Wrongful Termination

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Fifth Circuit Reverses Western District for Making Credibility Determinations, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/nk7tmln

In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944 (5th Cir. 8/10/2015), the Fifth Circuit overruled the district court’s summary judgment. The court addressed a frequent issue, who is responsible for the termination of temporary employees? But, in so doing, the higher court also addressed a more frequent issue, how to apply the summary judgment standard. . . .

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When Is An Offer of Employment Letter The Same As A Contract?

13 Thursday Aug 2015

Posted by in Breach, Contract Law, Employment Contracts, Employment Law, Intentional Promise, Religious Discrimination

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Federal Judge Allows Stephen Salaita’s Suit Against the University of Illinois to Proceed, by Jeremy Telman, ContractsProf Blog

http://tinyurl.com/o7flplx

In a case we have been following for a year (here, here, and here, for example), Stephen Salaita is suing the University of Illinois for withdrawing its offer to hire him to teach in its American Indian Studies Program after discovering some intemperate anti-Zionist tweets Mr. Salaita had posted. . . .

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Wrongful Termination for Religious Discrimination – Spoiler Alert! The Employer Wins.

22 Wednesday Jul 2015

Posted by in Employment Law, Religious Discrimination, Wrongful Termination

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Oy Vey! No Religious Discrimination in Jewish Nurse’s Termination, by Jason Shinn, Michigan Employment Law Advisor

http://tinyurl.com/q8ddaj8

A recent religious discrimination claim dismissed in favor of an employer offers a number important take-aways for both employers and employees. . . .

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Employment Law Fallacies – How Many Will You Get Right?

01 Monday Jun 2015

Posted by in At-Will Employment, Employee Manuals, Employment Law, Whistleblower, Wrongful Termination

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Nine Employment Law Myths, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/o2xdkpa

Many potential clients, friends and some folks I barely know share their knowledge with me about employment law.  Unfortunately, many of them are flat wrong. Here are a few of the more common employment law myths I encounter. . . .

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Pregnant Manager Fired For Refusing To Pay Back Money Taken In Robbery.

27 Monday Apr 2015

Posted by in At-Will Employment, Employment Law

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Popeye’s Manager Fired after Refusing to Pay for Robbery,  by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/nn48we6

This is the ugly side of at-will employment. Under at-will employment, a worker can be fired for any reason, so long as the reason does not involve discrimination and a few other rare exceptions. Marissa Holcomb was fired from her job as manager at the Popeye’s in Channel View, a Houston suburb after the place was robbed. The robber took $400 from the cash register. Ms. Holcomb was told to pay back the $400 or be fired. The pregnant mother of three chose to be fired. She could not afford to pay $400, especially after risking her life for her employer. The robber pointed a pistol at her and others during the incident.

Ms. Holcomb was fired less than 36 hours after the robbery. A franchise spokeman said she was fired because she left too much money in the register. . . .

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Latest Supreme Court Opinion on Pregnancy Discrimination Claims.

28 Saturday Mar 2015

Posted by in Employment Law, Pregnancy Discrimination, United States Supreme Court

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A New Day for Pregnant Employee Workplace Accommodations – Understanding the New Framework, by Jason Shinn, Michigan Employment Law Advisor Blog

http://www.michiganemploymentlawadvisor.com/category/pregnancy-discrimination-act/

Yesterday [March 26, 2015] the U.S. Supreme Court issued the much anticipated opinion in a pregnancy discrimination claim, Young v . United Parcel Service.

For context, the claim in Young v UPS arose under the Pregnancy Discrimination Act (PDA). The PDA was added to Title VII (the gold-standard in terms of civil rights law prohibiting workplace discrimination) to overcome a prior Supreme Court ruling that allowed employers to treat pregnant female workers less favorably based on being pregnant.

There are two anti-discrimination provisions under the PDA: the first prohibits pregnancy bias as a form of discrimination based on sex; the second prohibits employers from treating female employees who become pregnant different than other employees who perform the same sort of work. . . .

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Is Claustophobia A Viable ADA Lawsuit?

04 Wednesday Mar 2015

Posted by in Americans With Disabilities, Disabilities, Employment Law, Wrongful Termination

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Lawyer’s Claustrophobia ADA Suit Survives Motion To Dismiss, by Debra Cassens Weiss, Undisputed Legal Inc.

https://undisputedlegal.wordpress.com/2015/03/02/lawyers-claustrophobia-ada-suit-survives-motion-to-dismiss/

A Philadelphia lawyer who claimed her law firm failed to accommodate her claustrophobia may proceed with her lawsuit, a federal judge has ruled. E refused to dismiss the disability suit against the law firm Marshall Dennehey Warner Coleman & Goggin, the Legal Intelligencer (sub. req.) reports. The plaintiff, former law firm associate Erica Serine, had claimed the law firm refused to accommodate her disability and then fired her.

According to Schiller’s Feb. 25 opinion (PDF), Serine had requested a transfer in 2012 from a Marshall Dennehey office in Moosic, Pennsylvania, to an office in Philadelphia or Cherry Hill, New Jersey, to be close to family in the area. The firm allowed a transfer to the Philadelphia office.

But Serine says she experienced anxiety and other symptoms of claustrophobia beginning with her elevator ride to the 24th floor of the Philadelphia office on Oct. 1, 2012. She ‘obsessively researched evacuation plans’ and had trouble sleeping and eating, the opinion said. She was extremely nervous at work, particularly when in the elevator or when away from a window.

The law firm allowed Serine to work from home while she sought treatment with a psychologist, but turned down her request to work at the Cherry Hill office or Pennsylvania offices in King of Prussia or Doylestown.

In December 2012, Serine was advised she could work in Philadelphia or Moosic, but she could not continue to work from home. She was fired the next month. . . .

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Valentine’s Day Regrettable Bad Influence at The Workplace.

14 Saturday Feb 2015

Posted by in EEOC, Employment Law, Harassment, Sexual Harassment

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More Examples of Why Valentine’s Day is a Bad Day for Employers, by Daniel Schwartz, Connecticut Employment Law Blog

http://tinyurl.com/pnzmh49

A little something for Valentine’s Day. -CCE

Two years ago, I wrote of the perils of Valentine’s Day.  While it may be a day for lovers, it is also a day where people do crazy (read: stupid) things.

I am not talking about Crazy. Stupid. Love. (Good movie, silly name.)

I’m talking about things that can lead to a sexual harassment lawsuit.

Not convinced? Well, since 2011, there are still more cases that have arisen where Valentine’s Day figures prominently. Here are two prime examples. . . .

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Why Is Workers’ Compensation An Exclusive Remedy In Employee’s Death Case?

25 Sunday Jan 2015

Posted by in Damages, Employment Law, Litigation, Torts, Workers' Compensation

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Workers’ Compensation Is Exclusive Remedy, by Barry Zalma, Zalma On Insurance Blog

http://zalma.com/blog/workers-compensation-is-exclusive-remedy/

Tort Judgment Against Employer Is Only Good for Wallpaper

The workers’ compensation system across the United States provides benefits to injured workers without regard to fault. When the injury is serious or results in death the workers’ compensation benefits do not feel sufficient to indemnify the injured worker or his or her estate for the loss incurred. As a result, the injured worker or his estate will attempt a tort action and then try to collect that judgment by means of a suit against the employer’s insurer.

Employers and employees make a bargain: the employer will not require proof of negligence if the employee is injured and the employee agrees that he or his estate will accept the statutory benefits provided by state law and give up the right to sue the employer for tort damages.

In Morales v. Zenith Ins. Co., — F.3d —-, 2015 WL 265445 (C.A.11 (Fla.) 1/22/15) the estate of an injured worker successfully sued an employer and sought to recover by means of a breach of contract claim filed by plaintiff-appellant Leticia Morales, on behalf of herself, the Estate of Santana Morales, Jr., and two minor children against Zenith Insurance Company (‘Zenith’).

FACTS
Santana Morales, Jr. was crushed to death by a palm tree while working as a landscaper for Lawns Nursery and Irrigation Designs, Inc. (‘Lawns’). At the time of Morales’s death, his employer Lawns maintained a ‘Workers’ Compensation and Employers Liability Insurance Policy’ with Zenith. The policy contained two types of coverage: (1) workers’ compensation insurance under Part I and (2) employer liability insurance under Part II. After Morales’s death, Zenith began paying workers’ compensation benefits to the Estate in accordance with its obligation under Part I of the policy.

Under Part II, Zenith was obligated: (1) to ‘pay all sums [Lawns] legally must pay as damages because of bodily injury to [its] employees, provided the bodily injury is covered by this Employers Liability Insurance’; and (2) to defend lawsuits for such damages. In relevant part, Part II contained an exclusion barring employer liability insurance coverage for ‘any obligation imposed by a workers compensation … law’ (the ‘workers’ compensation exclusion’).

On December 3, 1999, the Estate filed a wrongful death action against Lawns in Florida circuit court and obtained a default jury award to the Estate of $9.525 million in damages against Lawns. . . .

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Abusive Bosses Learn by Playing Follow The Leader. Is It That Simple?

17 Saturday Jan 2015

Posted by in Bullying, Employment Law, Harassment, Hostile Work Environment, Law Office Management, Management

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My Boss / My Self, by Vivia Chen, the careerist blog

http://thecareerist.typepad.com/thecareerist/2013/01/are-you-mean-and-nasty-at-work-.html

I’ve heard bosses give this reason before. “I used to be a nice person.” At least they see it. Some don’t or won’t. So what happened? -CCE

Do you ever feel like wringing the necks of underlings who seem incapable of following your directives? Okay, so who hasn’t? But do you go one step further—like berating or humiliating them?

If you are becoming short-tempered, mean, or just nasty at work, don’t blame it on your crushing workload. According to a study described in the Harvard Business Review Blog, you might be modeling your behavior after your own boss.

It’s the child abuse syndrome: Those who were abused end up as abusers themselves.

The study, which was conducted by Christine Porath of Georgetown University and Christine Pearson of the Thunderbird School of Global Management, finds that 60 percent of employees ‘blame their bad behavior on being overloaded at work.’ But the research indicates other dyanamics in play, writes the authors in HBR Blog:

In one of our surveys, 25 percent of managers who admitted to having behaved badly said they were uncivil because their leaders—their own role models—were rude. If employees see that those who have climbed the corporate ladder tolerate or embrace uncivil behavior, they’re likely to follow suit.

Of course, it doesn’t take a management genius to figure out that having an office full of bullies and victims doesn’t make for a productive workplace. The report finds:

– 48 percent of employees intentionally decreased their work effort.

– 47 percent intentionally decreased their work time.

– 80 percent lost work time worrying about their treatment.

– 66 percent said that their performance declined.

So what can businesses do to eradicate workplace incivility? . . .

New Law For Paid Sick Leave?

16 Friday Jan 2015

Posted by in Employment Law, Health Care Benefits, Pregnancy Discrimination

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President Obama To Push For Paid Sick Leave For American Workers, by Eric B. Meyer, The Employer Handbook

http://tinyurl.com/kyyw5te

In an announcement made late in the day yesterday on LinkedIn [January 14, 2015], Valerie Jarrett, Senior Advisor to President Barack Obama, posted that President Obama will call upon Congress today to pass the Healthy Families Act.

More on this push from the President and what it will mean for American business, after the jump…

* * *

I’ve blogged about the Healthy Families Act before here. Essentially, the Healthy Families Act would require companies with 15 or more employees to permit each employee to earn at least 1 hour of paid sick time for every 30 hours worked.

Employees could then use this accrued sick time to: (1) meet their own medical needs; (2) care for the medical needs of certain family members (including a domestic partner or the domestic partner’s parent or child); or (3) seek medical attention, assist a related person, take legal action, or engage in other specified activities relating to domestic violence, sexual assault, or stalking.

Many states and cities have already paid sick leave laws. And, of course, many companies provide paid sick leave voluntarily. The Act would not be cumulative. Rather, it would set a floor for qualifying American businesses. . . .

NLRB “Likes” Facebook.

10 Wednesday Dec 2014

Posted by in Civil Rights, Employment Law, First Amendment, Social Media

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Social Media Update: Recent Developments from the Land of Facebook…, by John R. Martin, Rhoads & Sinon LLP

http://tinyurl.com/ky45qvf

I think we can all agree that, as a general rule, employers and social media are not Facebook friends. They don’t follow each other on Twitter. Or Instagram. And they would never (ever) be caught dead sending the other a Snapchat. (Mind out of the gutter, people. Not that kind of Snapchat.)

While employment relationships, for the most part, remain ‘at-will,’ social media has slapped the handcuffs on employers in many respects when it comes to the issue of employee discipline. Most notably, the National Labor Relations Board (“NLRB”) has come down hard on an employer’s ability to discipline an employee for social media-related conduct that has even a passing relationship to the terms and conditions of employment (e.g., complaining about wages, benefits, hours worked, etc.). The NLRB has also frowned on many social media policies and has declared nearly all of the ones it has reviewed to be unlawfully overbroad in restricting an employee’s right to engage in protected activity online.

Sorry employers… things aren’t getting any better just yet, as two recent cases have made clear.

An Employee’s First Amendment Right to ‘Like’

A federal appellate court recently ruled that clicking Facebook’s ‘Like’ button can be considered speech protected by the First Amendment. In the case, several deputies were not reappointed by the sheriff after winning his reelection campaign. What was the alleged reason for this decision? The deputies had (horror!) ‘liked’ the Facebook page of one of the sheriff’s opponents during the election….

The (now unemployed) deputies sued, citing a violation of their First Amendment rights. (A viable legal claim, as this is a public, i.e., government, employer. As discussed in a previous blog post, private employers need not concern themselves with such issues. However, when politics are at play, there’s always cause for concern, whether public or private, as was discussed in another prior post.) And guess what? The deputies won….

Illinois Pension Law Ruled Unconstitutional.

22 Saturday Nov 2014

Posted by in Bankruptcy Law, Employment Law, Illinois Supreme Court, Pension Rights

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Judge Rules Illinois Pension Law Unconstitutional, by Elizabeth LaForgia, JURIST (Supported by the University of Pittsburg School of Law)

http://tinyurl.com/oppjhg8

An Illinois judge on Friday ruled [opinion, PDF] a law intended to fix the pension crisis in the state violates the Illinois constitution. Sangamon Country Circuit [official website] Judge John Belz ruled in favor of state employees and retirees who sued to block the law. Last December, state lawmakers passed [JURIST report] the bill [text, PDF], which amended the state’s pension plan in an effort to cut spending and lower the state’s debt. The law would raise the retirement age and lower annual increases in pensions to retired employees, which would be based on the number of years worked. Public employee unions challenged the measure under the Pension Protection Clause of the Illinois Constitution [materials], arguing that the constitution prohibits reducing benefits or compensation. In response, the state argued that pensions can be modified in times of fiscal emergency. ‘The state of Illinois made a constitutionally protected promise to its employees concerning their pension benefits,’ wrote Judge Belz. ‘Under established and uncontroverted Illinois law, the state of Illinois cannot break this promise. Illinois Attorney General Lisa Madigan [official website] announced [statement] that they “plan to immediately appeal the decision to the Illinois Supreme Court.’

Pension rights have been a controversial issue recently. In December, a judge for the US Bankruptcy Court for the Eastern District of Michigan [official website] ruled [JURIST report] that the city of Detroit is eligible for bankruptcy [JURIST op-ed]. The insolvent city’s debt [JURIST op-ed] includes 3.5 billion dollars in pension funds. The bankruptcy was allowed to go forward despite a Michigan state court ruling [JURIST report] last year which held that the city’s filing for bankruptcy violated the Michigan Constitution. The bankruptcy court held that the pension funds could not be treated any differently than other unsecured debt. In March 2013 the US District Court for the Southern District of New York [official website] denied [JURIST report] a motion to dismiss a lawsuit brought by a pension plan holder against JPMorgan (JPM) [corporate website; JURIST news archive]. The court found that sufficient allegations were raised to support a claim for breaches of both the duty of care and the duty of loyalty.

Employees’ Privacy Rights, Social Media, And The Stored Communications Act.

26 Sunday Oct 2014

Posted by in Employment Law, Social Media

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Federal Court Allows Plaintiff’s Stored Communications Act to Proceed Highlighting Role of Social Media in the Workplace, by Randy Enochs, Wisconsin Employment & Labor Law Blog

http://tinyurl.com/l5d3l9z

A federal district court in Northern Illinois, in a rather interesting case given the widespread use of Facebook and Twitter in the workplace by employees who are looking to advance both their careers with an employer as well as market themselves better, has denied an employer’s motion for summary judgment on the plaintiff’s Stored Communication Act (SCA) claim.  The case is super fact-specific and may not apply in every case, but highlights an important message to employers in the social media arena, which continues to present new and interesting issues every year. . . .

“Employee” or “Independent Contractor” Drilled Through The Hand At Bada Bing Club? Why It Makes A Difference.

25 Saturday Oct 2014

Posted by in Employment Law, Independent Contractors

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Drilling Home the Difference Between an Independent Contractor and Employee, by Jason Shinn, Michigan Employment Law Advisor Blog

http://tinyurl.com/qypgowu

A common question that business owners raise involves the use of employees versus independent contractors. The use and classification of an individual as an employee or independent contractor is one of the more complicated employment law issues that business owners will deal with and resolving such issues will depend upon circumstances.

Consider one test, the economic reality test, is used for determining employment status when it comes to social legislation such as worker’s disability compensation. However, another test, the ‘control test,’ is used when it comes to tort actions. And both of these tests have multi-faceted factors that need to be considered under the specific circumstances).

But a recent Michigan Court of Appeals decision (Cole v. The Bada Bing Club, 2014) involving an employee/independent contractor issue drills home the point (quite literally) one of the significant differences between the two statuses and why it matters to employers.

The Beating at the Bada Bing Club

Specifically, Dennis Cole was severely beaten in the basement of the Bada Bing Club by the club’s manager, Henry Ramirez and three other individuals. The following is taken directly from the Court of Appeals opinion:

‘Plaintiff was taped to a chair, beaten with a gun, punched and kicked, and drilled through the hand with an electric drill. The men were all convicted of criminal charges for their involvement.’

Plaintiff sued the Bada Bing Club and Atlantis Lounge Inc. Atlantis Lounge was the sole Owner of the Bada Bing Club, which was an assumed name filed by Atlantis. Atlantis Lounge, however, verbally contracted with Henry Ramirez (the guy involved in beating Plaintiff) who solely managed and operated the Bada Bing Club.

Lawsuit Turns on Employee or Independent Contractor Status

A central issue on appeal was whether Ramirez was an employee or an independent contractor. If Ramirez was an employee of Atlantis Lounge, then Atlantis could be held directly liable for negligently hiring, training, or supervising Ramirez. In contrast, under Michigan law there is no comparable cause of action for the negligent hiring or retention of an independent contractor. In other words, if Ramirez was an independent contractor then Atlantis Lounge was off the hook. . . .

Ignore Duty For Litigation Holds At Your Peril.

15 Wednesday Oct 2014

Posted by in Discovery, E-Discovery, Employment Law, Litigation Hold, Preservation, Race Discrimination, Sanctions, U.S. District Court for the Southern District of New York

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Don’t Hit That Delete Button: An Update On Litigation Holds For Employment Claims, by Andrew P. Sherrod, Inside Counsel Magazine

http://tinyurl.com/ka6thgo

By now, most companies are — or at least should be — well aware of their obligation to preserve relevant documents and electronic information when they reasonably anticipate litigation. This duty can arise in many contexts, but employment complaints are a prime example. Despite the multitude of judicial decisions and articles on the subject, companies continue to hinder their defense of employment claims by failing to undertake appropriate preservation measures.

The consequences of failing to implement and monitor a litigation hold in response to an employment claim were reinforced in a recent decision from the United States District Court for the Southern District of New York in Hawley v. Mphasis Corp.

In Hawley, an employee of the defendant company claimed that he was discriminated against on the basis of his ethnicity in a number of ways during the course of his employment. The employee filed an EEOC charge of race and national origin discrimination in September 2009. The company terminated the employee in November 2009, and he thereafter filed a second EEOC charge, which was mailed to the company in December 2009. The employee then filed a discrimination suit in January 2012 against the company under 42 U.S.C. § 1981 and state civil rights laws.

During his employment, the plaintiff received a company-issued laptop computer on which he was required to perform his work. After his termination, the employee returned the computer to the company in December 2009. The next month, the company reassigned the computer to another employee, permanently deleting all of the plaintiff’s data.

The company also waited until April 2012 — almost three months after the filing of the plaintiff employee’s lawsuit and more than two years after his EEOC charges — to instruct the plaintiff’s supervisor and several other employees to preserve all documents and communications related to the plaintiff. . . .

This Time, Employer’s Social Media Policy Does Not Violate Employee’s Rights.

06 Sunday Jul 2014

Posted by in Administrative Law, Employment Law, Social Media

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Employer’s Social Media Policy Found Not To Violate Employees’ Rights, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor

http://tinyurl.com/q8pogjs

A recent social media case involving the NLRB should be cause for celebration for employers. Specifically, in Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB administrative law judge (ALJ) had found a social media policy concerning its subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., did not violate the National Labor Relations Act (NLRA).

Initially, the General Counsel argued that Bubba Gump’s social media policy infringed on employee’s rights under the NLRA because it would tend to prohibit employees from discussing terms and conditions of employment with coworkers or third parties. That social media stated as follows:

‘While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.’

The ALJ agreed that without ‘more,’ the first sentence could violate the NLRA. But the ALJ noted that the social media policy did not outright restrict speech on job related issues – job related subject matters – but, instead, the manner in which such issues are being discussed and debated, i.e., being civil to others and their opinions:

‘Without more, it would be reasonable for employees reading this language to conclude that the Respondent generally frowns upon all job-related postings of any type. However, the cautionary language is modified by the language in the next sentences which may be understood to clarify that the 40 avoidance of morale problems may be ‘accomplished’ by simply being civil to others and their opinions.’

Employer Take-Aways

From an employer’s perspective this case is a good result. But it is also a reminder that the NLRB’s General Counsel continues to closely scrutinize employers’ social media policies. For this reason, it continues to be important to carefully draft social media policies that will give ALJs the opportunity to sensibly read the policies so as to not find a violation of employees’ rights under the NLRA. . . .

Note Limited Time to File Employment Discrimination Charge!

14 Saturday Jun 2014

Posted by in Anti-Retaliation, Bullying, Disabilities, EEOC, Employment Law, Fair Labor Standards Act, Gender Discrimination, Harassment, Hostile Work Environment, Minimum Wage, Overtime, Pregnancy Discrimination, Race Discrimination, Sexual Harassment, Wrongful Termination

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Time Limits For Filing A Charge, U.S. Equal Employment Commission

http://www.eeoc.gov/employees/timeliness.cfm

The anti-discrimination laws give you a limited amount of time to file a charge of discrimination. In general, you need to file a charge within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The rules are slightly different for age discrimination charges. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.

Note: Federal employees and job applicants have a different complaint process, and generally must contact an agency EEO Counselor within 45 days. The time limit can be extended under certain circumstances.

Regardless of how much time you have to file, it is best to file as soon as you have decided that is what you would like to do.

Time limits for filing a charge with EEOC generally will not be extended while you attempt to resolve a dispute through another forum such as an internal grievance procedure, a union grievance, arbitration or mediation before filing a charge with EEOC. Other forums for resolution may be pursued at the same time as the processing of the EEOC charge. . . .

Texas Federal Court Holds That Intrastate Truck Drivers Are Eligible for Overtime.

27 Monday Jan 2014

Posted by in Employment Law, Fair Labor Standards Act, Litigation, Trial Tips and Techniques

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Federal Court Finds Intrastate Truck Drivers Eligible For Overtime Pay, by Andrew Iwata, Lawyer Up Blog

http://tinyurl.com/mkem29j

In Butcher v. TSWS d/b/a Pot-O-Gold, (S.D. Tex. August 25, 2011), the Southern District of Texas denied an employer’s motion for summary judgment in a case involving FLSA overtime claims brought by truck drivers.  The employer argued that the plaintiffs were subject to the FLSA’s motor carrier exemption (which would mean that the drivers were not entitled to overtime pay) because the plaintiffs work affected the safety of interstate transportation.  Although the plaintiffs never crossed state lines in driving their trucks for the defendant, the company claimed that the employees could have been called upon to drive interstate at any time.  The court acknowledged that under Songer v. Dillon Resources, 618 F.3d 467 (5th Cir. 2010), an intrastate driver may be exempt during periods when the driver ‘could have been called upon’ to drive interstate at any time.  The court acknowledged that under Songer v. Dillon Resources, 618 F.3d 467 (5th Cir. 2010), an intrastate driver may be exempt during periods when the driver “could have been called upon” to drive interstate.

 

2014 Employment Law Predictions.

11 Saturday Jan 2014

Posted by in Affirmative Action, Bullying, Criminal History, Employment Law, Gender Discrimination, Health Care Benefits, Health Reform, Internships, Medical Marijuana, Minimum Wage, Pregnancy Discrimination

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Donna’s Employment Law Predictions for 2014, by Donna Ballman, Screw You Guys, I’m Going Home Blog

http://tinyurl.com/mqokell

Minimum wage, legalized marijuana, health care, internships, background checks, pregnancy discrimination, and more. -CCE