Discrimination Based on Perceived Sexual Orientation??
The Situation: An employee claims that she was repeatedly harassed by her supervisor in ways seemingly related to her sexual orientation—frequently saying that she dressed like a lesbian and similar remarks. The employee is actually heterosexual and married to a man. But based on the supervisor’s conduct, other employees begin to actually think that the employee is gay and she begins to feel compelled to explain her sexual orientation. If the employee quits because of the alleged harassment, can she bring a claim under Title VII?…READ MORE
Despite Serious Documented Performance Issues, Reference to Medical Leave May Mean FMLA Retaliation Claim
The Situation: An employee begins working as a sales consultant and from the beginning, has serious performance issues. She is given a number of warnings and even placed on an improvement plan. After she receives a final warning threatening termination if her performance does not improve, she submits a request for FMLA leave for some necessary surgery. The employer grants the request, but then terminates her soon after her return when it is clear her performance is not improving. But in the email sent up the chain recommending termination, the supervisor references the request for medical leave. Is this enough to support a retaliation claim, despite the clear (and well-documented) performance issues?…READ MORE
Has Filing an EEOC Charge Just Gotten Easier?
The Situation: In recent years, the EEOC has begun the implementation of a digital charge system—the idea being that allowing employers and employees to utilize a digital system would both make it easier on them and also on the agency itself. The first phase was implemented in 2015 and allowed employers against whom a charge of employment discrimination had been filed, to interact with the EEOC online through an employer portal (so could upload and download documents, submit a position statement, verify information, etc.). Earlier this week, the EEOC announced another step in its plan to go digital, launching a new Online Inquiry and Appointment System in five of its offices.…READ MORE
Firing Six Weeks After Charge Enough to Show Retaliation?
The Situation: An employee files an EEOC charge, claiming she was discriminated against based on her race. Because of some ongoing performance issues, you put her on a performance improvement plan three weeks later. Following the issuance of another written warning, you decide to terminate her, about six weeks after her charge was filed. Can she bring a retaliation claim based on the timing alone?…READ MORE
Can Hugging Be Hostile?
The Situation: One of your top level managers is known to frequently hug female employees, both in the workplace and outside of work. A female employee who has worked for your company for a number of years ends up filing a charge with the EEOC, asserting a hostile work environment in violation of Title VII, claiming that based upon this manager’s frequent and unwelcome hugs, she has experienced significant stress and anxiety at the workplace. Could your company face liability under Title VII? …READ MORE
Concerned About Protecting Your Trade Secrets?
The Situation: Something that many employers have in common is a concern about protecting their confidential information, particularly in this day and age, when job hopping is somewhat common. Many employers have some significant concerns about making sure that their trade secrets are fully protected from disclosure by employees that move on to greener pastures—this includes things like customer lists, pricing strategies, manufacturing methods, and other similar types of information. As many employers are aware, in the spring of last year, the Defend Trade Secrets Act (“DTSA”) was signed into law—providing a federal cause of action for the misappropriation of trade secrets along with state laws that address trade secrets. But in order to get the most benefit out of this law (meaning the ability to recover the most damages), employers need to make sure that employees are given notice of immunity rights.…READ MORE
Can Firing an Employee for a False Sexual Harassment Claim Be Considered Retaliation?
The Situation: An employee lodges a number of complaints against a certain supervisor, claiming that he has made some offensive and inappropriate remarks of a sexual nature. You interview some of the other employees who were purportedly present when these statements were made and none of them back up the complaining employee’s story. The supervisor also denies making the statements. You terminate the employee who made the complaints on the grounds that she has intentionally falsified a claim of harassment, in violation of your anti-harassment policy. Can you face a claim of retaliation?…READ MORE
Can Employers Obtain Cell Phone GPS Data In Unpaid Overtime Case?
The Situation: You operate a company in which employees frequently use personal cell phones for work reasons. A group of employees joins together and files a collective action, asserting that you failed to pay them overtime as required under the FLSA. You want to get ahold of GPS and location services from their cell phones to support your suspicion that these employees were not really working during all the hours they now claim. Can you get this information?…READ MORE
New FLSA Test for Joint Employers in Fourth Circuit—If You Use Subcontractors, Pay Attention!
The Situation: A general contractor regularly engages a certain subcontractor to do drywall installation needed on its jobs. The subcontractor works almost exclusively for the general contractor. If the employees of the subcontractor are not paid overtime as required by the FLSA, can the general contractor face liability?…READ MORE
Would Your Company Need to Let an Intellectually Disabled Employee Work Shorter Shifts?
The Situation: You have an employee with intellectual limitations who typically has worked a consistent schedule of 12 pm until 4 pm. The employee has historically been a good employee and received good marks on performance reviews. You implement a new computerized scheduling process, pursuant to which employees are all automatically scheduled for various eight hour shifts. The employee requests that she be permitted to continue working her usual four hour shifts. Do you need to accommodate that request?…READ MORE