Departing employees do a lot of dumb things with email.  Sometimes they use an employer’s systems, which they know are regularly monitored, to ask their attorneys how to set up claims against their employers.  Sometimes, after they email a slew of confidential or trade secret information to themselves on their way out the door, they click delete on the sent messages only to leave all of the evidence in the “deleted” folder.  In today’s blog, we ask employers to leave it to departing employees to do dumb stuff with email. Continue Reading Don’t Access My Emails And Tell Me It’s Legal

The issue of whether employees can be required to sign arbitration agreements that contain waivers of their right to file a class or collective action over employment-related disputes is one that has drawn much attention – and much conflict – in recent years. The Obama administration, it seemed, steadfastly opposed such waivers. Under the Trump administration, which (regardless of your politics) has had a slow and bumpy transition of federal agency leadership, the agencies do not appear to be operating from the same playbook – as evidenced by recent actions by the National Labor Relations Board, (NLRB), the Department of Justice (DOJ), and the Consumer Financial Protection Board (CFPB). Continue Reading The Government Seems Confused About Class Action Waivers

24329Of course clients call me for advice on how to handle sticky situations with employees – that’s a major part of my job. And they know that our communications are subject to the sacred attorney-client privilege. But what companies need to understand is that this privilege might be waived by its corporate management, including officers and directors. It’s fine if the client knowingly chooses to waive it, with a full understanding of the consequences of such waiver – but, unfortunately, it can also be waived unintentionally. A recent case provides an excellent warning to companies (and their attorneys) about this. Continue Reading Be Careful About Waiving the Attorney-Client Privilege

Green-baby-boy-rattle-baby-rattle-clipart-cool-LSoFao-clipartThis past week, the American Civil Liberties Union announced that it was filing a charge of discrimination with the Equal Employment Opportunity Commission on behalf of a male J. P. Morgan employee because the company denies fathers paid parental leave on the same terms as mothers. Now this is an issue that has been percolating for awhile – and one that is not necessarily on the radar screens of smaller employers, many of whom may offer maternity – but not paternity – leave benefits to their employees. Continue Reading Maternity/Parental Leave Policies – A Trap for the Unwary

question-mark-xxlAs you may know, I am a die-hard management-side attorney. Typically, I cheer on federal courts that rule in favor of employers – but there are the rare occasions where I think the court gets it unquestionably, unutterably wrong. And the U.S. Court of Appeals for the 8th Circuit’s decision in Abdel-Ghani v. Target Corp. is one of these.

In this case, the plaintiff, a Palestinian immigrant, was employed by a third party, MarketSource, to work at a mobile phone sales kiosk at a Target store. He only worked there for about two months before he was terminated. During his employment, he did not get along with the MarketSource sales manager at that store, and at one point she supposedly told him, “Go back home, go to your country.” In addition, the plaintiff alleged that Target employees (from behind shelves) called him names such as camel jockey, Muslim, Arab, terrorist, and sand nigger, and that this occurred at least ten times during the two months of his employment. Also, he overheard another employee say, “[y]ou should be rounded up in one place and nuke[d].” He was terminated, ostensibly for issues with the sales manager, Target employees and guests. He then sued MarketSource and Target under Title VII for subjecting him to a hostile work environment and national origin discrimination, among other things. Continue Reading “Go Back to Your Country” Is Not Evidence of National Origin Discrimination?

get outI know that many employers feel hamstrung by the Family and Medical Leave Act’s statutory protections for employees. They can’t do much about the significant negative effects on business operations because of an employee’s unscheduled intermittent FMLA leave, for example. And FMLA abuse is sometimes (if not often) suspected but hard to prove. Many employees seem to view FMLA as a “get out of jail free” card that insulates them from discipline for bad behavior that is related in any way to FMLA – and a literal example of this can be found in the recent case of Capps v. Mondelez Global LLC. Continue Reading FMLA Is Not A “Get Out Of Jail Free” Card!

Judge_Gorsuch_official_portraitA colleague recently brought to my attention a 2014 employment case written by then-Circuit Judge Gorsuch for a panel of the U.S. Court of Appeals for the 10th Circuit – a particularly interesting opinion that may give us hints as to how Justice Gorsuch may rule in future employment cases before the Supreme Court.

In Hwang v. Kansas State University, an assistant professor was diagnosed with cancer and received a six-month leave of absence. (In the opinion, Judge Gorsuch specifically noted it was a “(paid) leave.” Whether or not it was paid is irrelevant to the legal analysis, but his express mention of payment suggests approval of the employer’s actions as exceeding the norm). Towards the end of the six months, she requested additional leave of apparently another few months. The University, however, had an inflexible policy limiting leave to six months, and it denied her request. The professor then sued, claiming that the University’s inflexible leave policy violated the Rehabilitation Act. Continue Reading Justice Gorsuch and the ADA?

transgender1600The issue of transgender rights has been the recent focus of much media attention, and Senior Circuit Judge Andre Davis has added an elegant and eloquent contribution to the conversation through his concurring opinion to the U.S. Court of Appeals for the Fourth Circuit’s order vacating the preliminary injunction it had previously issued in the case of G.G. v. Gloucester County School Board.

A transgender high school student, G.G. (Gavin Grimm), sued the Gloucester County School Board and asked for a preliminary injunction to allow him to use the bathroom consistent with his transgender status. The federal district court denied the request for preliminary injunction, but on appeal, the Fourth Circuit disagreed and ordered that the injunction be issued. Continue Reading Judge Davis’ Paean to G.G. and Other Brave Individuals Who Opposed Discrimination

transgender1600Yesterday, February 22, 2017, the Trump Administration rescinded Department of Justice (DOJ) and Department of Education (DOE) guidance that had been issued to schools on May 13, 2016 in the form of a “Dear Colleague” letter.  The letter stated that it was the DOJ’s and DOE’s interpretation of Title IX (the federal law prohibiting sex discrimination in education) that schools must allow transgender students to use the gender-specific bathroom with which they identify and that schools could not force students to use bathrooms based on their biological sex.  The DOJ and DOE stated that schools that did not follow the guidance could risk losing federal funding. Continue Reading Trump Administration Rescinds Transgender Student Guidance – What Does This Mean for Employers?

healthFollowing up on my recent post, “Employer May Change Essential Functions of the Job,” I thought we’d discuss another little-mentioned aspect of essential job functions under the Americans with Disabilities Act – job functions that are rarely performed can still be essential!

As we’ve previously discussed, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. The ADA regulations define “essential function” as “a fundamental job duty of a position.” But how do you determine what are the essential functions of a particular job? According to the Equal Employment Opportunity Commission (which is the federal agency charged with enforcing the ADA) and the regulations, the following factors should be taken into account in determining whether a job function is essential: Continue Reading Rarely Performed Job Functions May Still Be “Essential” Under ADA