Every now and then I read a case where from the beginning when presented with the employer’s handling of a termination, I can see the wheels coming off – so to speak.

Such was the case when I read Matchko v. Kost Tire Distributors, Inc.  The employer laid off (or was he terminated? – more on that later) its 73-year old District Manager, who had received several promotions, had never been disciplined, and had never received negative performance evaluations. He sued, alleging age discrimination under the Age Discrimination in Employment Act and state law.

The District Manager contended that his employer told him he was laid off because of lack of work.  On the other hand, the employer claimed the District Manager was laid-off (but not terminated) because he was not performing the duties and responsibilities of his job and because business was slow. Inexplicably, however, the employer advertised for applicants to fill the District Manager’s position while he was still laid-off.  Despite the employer’s insistence that the District Manager was laid off, he was not brought back to work, and was ultimately replaced with an individual who was over 40, but twenty years younger. (And yes, age discrimination can still occur even if a replacement is part of the protected age group of over 40, as long as the replacement is younger).

Predictably, the court denied the employer’s motion for summary judgment.  The employer simply could not get its story straight at any point and its reasoning for separation from employment was inconsistent at every stage.  It was unclear whether the employee was terminated or simply placed on layoff.  Next, it was unclear whether the decision was a result of loss of business or deteriorating performance – the employer offered both as rationale for its decision.  The court articulated that the employer’s inconsistent reasons for the District Manager’s separation, as well as the lack of evidence regarding the alleged deteriorating performance, supported a finding of pretext for discrimination by the employer.

So, what was the issue here?  Was this a classic case of too many drivers behind the wheel?  Or was the employer simply spinning its wheels, failing to figure out whether the employee would be terminated or laid off, and the reasons regarding the same?

This case is a good reminder to employers that their proffered reasons for separation of employment should be both consistent AND legitimate, and their subsequent actions should be aligned with those proffered reasons. In other words, when terminating an employee, have your story straight, and make sure your previous, current, and subsequent actions back up that story!

In response to the coronavirus pandemic, many employers have permitted or mandated telework arrangements for their employees.  As more people become vaccinated and the number of new COVID-19 cases declines, however, those employers will likely begin to recall their employees to the office.  Unsurprisingly, many employees have become accustomed to working from home over the past year, and enjoy the ability to wake up, throw on athleisure, and do a couple loads of laundry as they go about their workday.  This begs the question: is an employer obligated to permit an employee to telework simply because the employee finds working from home more preferable, desirable, or convenient than going to the office?   A federal judge in the District of Columbia recently said “no.”

Continue Reading Employees Don’t Get to Telework Just Because They Want To…

With the change in administration, the Department of Labor’s recently-issued Final Rule governing the treatment of tipped employees under the Fair Labor Standards Act was thrown into doubt. Following a formal delay of the Final Rule’s effective date of March 30, 2021, the Biden DOL has now announced that parts of the Final Rule will take effect on April 30, 2021, while other parts will be further delayed and revised, subject to public comment.

Continue Reading The DOL’s Tipped Employee Final Rule: What Is Taking Effect and What Is Not

The Centers for Disease Control and Prevention (CDC) has issued guidance on workplace vaccination programs that reiterates and expands upon prior guidance on this topic, with the intent of increasing vaccine uptake among essential (and other) workers. According to the CDC, vaccinations benefit both employers and employees by keeping the workforce healthy, reducing absences, and improving both productivity and morale. The CDC offers specific tips on the following topics: vaccination options, on-site and off-site vaccinations, building confidence in COVID-19 vaccines, determining when employees may be vaccinated, vaccine mandates and exemptions, best practices, other considerations, and reopening the workplace.

Continue Reading The CDC’s New Guidance on Workplace Vaccination Programs; What Employers Need to Know

In addition to expanding and extending the tax credits that employers may opt to receive under the Families First Coronavirus Response Act for voluntarily providing paid COVID-19-related leave through September 30, 2021, which we discussed in our March 12, 2021 E-lert, the American Rescue Plan Act of 2021 (ARPA) contains several other important employment-related provisions: (1) an extension and expansion of the Paycheck Protection Program, with the creation of a new restaurant grant program; (2) continuation of enhanced unemployment insurance benefits; (3) a new COBRA premium subsidy; and (4) extension and expansion of the employee retention tax credit.

Continue Reading Beyond Paid Leave – The Other Employment-Related Provisions of the American Rescue Plan Act

The American Rescue Plan Act of 2021 (ARPA), which was signed into law by President Biden on March 11, 2021, both expands and extends the tax credits that employers may opt to receive under the Families First Coronavirus Response Act (FFCRA) for voluntarily providing paid COVID-19-related leave through September 30, 2021.

Continue Reading Employers May Now Voluntarily Provide Up to 14 Weeks of Paid, Expanded FFCRA Leave and Receive a Tax Credit

This week, the Centers for Disease Control and Prevention (CDC) announced new, more relaxed COVID-19 protocols for fully-vaccinated individuals. Notably, among the guidance, the CDC stated that such individuals should continue to “[f]ollow guidance from individual employers.” But should employers modify their existing guidance to account for these new protocols?

Continue Reading Looser COVID-19 Rules for Vaccinated Individuals? What This Means for Employers

With case rates declining and COVID vaccine options expanding, five States as of March 8, 2021 have announced the end of all pandemic-driven restrictions, including mask mandates. (The lifting of Texas’ ban takes place on March 10; eleven states never mandated face coverings.) The “mask wars” had been tamped down by State mandates, but détente has ended in the “open” States. What does this mean for workplaces?

Continue Reading What to Do About Workplace Masking in the “Open” States

In my next installment of what has turned out to be a series on the articles written by EEOC staff members for its quarterly Digest of Equal Employment Opportunity Law, I offer you some interesting tidbits from its most recent publication, addressing national origin discrimination under Title VII – a protected characteristic that is surprisingly wide in scope and, as the EEOC notes, often overlaps with race, color, or religious discrimination. As I noted in my blog post on the EEOC’s article on fragmentation of harassment, although these articles are targeted towards federal agencies, they offer private employers some insight as to the EEOC’s approach to these issues.

Continue Reading The EEOC’s Very Broad Approach to National Origin Discrimination and English-Only Policies

In my spare time (which has been limited during the pandemic, given the whirlwind of COVID-19-related legal developments), I like to peruse the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law. (Nerd alert!) In addition to summaries of recent EEOC decisions and federal court opinions, each digest contains an article that provides some insight into the EEOC’s position on a particular topic. Now while the articles are targeted towards federal agencies, they offer private employers a roadmap as to the EEOC’s thinking. We’ve blogged about prior articles on religious discrimination, remedies for discrimination, comparing harassment prevention to crime prevention, and new types of race discrimination, among other things. A recent article caught my eye – “Claims of Harassment and the Problem of Fragmentation.” (Well, that’s a new phrase to me!)

Continue Reading What Is Fragmentation of Harassment Claims? The EEOC Speaks