Employers rejoice! The Trump administration continues to roll back the anti-business positions asserted by various federal agencies under the Obama administration, as most recently evidenced by the Department of Labor’s June 7, 2017 withdrawal of two Administrator Interpretations on joint employment and independent contractor status. Continue Reading DOL Withdraws Guidance Documents on Joint Employment and Independent Contractor Status
Take Your Dog to Work Day!
So I just heard about this official event, which has apparently existed since 1999! Granted, until 5 years ago, I didn’t have a dog and, in fact, couldn’t stand them, so this would not have been on my radar screen. Some of you may know from past posts (Sick Leave for Your Dog?, Pet Bereavement Leave? and “Paw-ternity” Leave?) that I now adore my dog. Nonetheless, I’m not sure that I fully agree with the idea of bringing pets into a normally pet-free workplace… Continue Reading Take Your Dog to Work Day!
“Go Back to Your Country” Is Not Evidence of National Origin Discrimination?
As 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?
HR Lessons from the Comey Termination
Whether you live in a blue state, red state, or just in the state of denial, you surely have heard by now about President Trump’s firing of FBI Director James Comey. And whether you think the termination was “way overdue” or “bat sh– crazy,” we can all probably agree that it was not exactly HR 101 when it comes to best practices for handling an employee termination. So, what are some of the lessons we can draw from this situation? Continue Reading HR Lessons from the Comey Termination
Is Setting Pay Based on Prior Salary the Same as Setting Pay Based on Sex?
Can prior salary justify a pay differential, or does it necessarily perpetuate sex-based pay discrimination? This was the subject of a recent Equal Pay Act (EPA) case before the U.S. Court of Appeals for the Ninth Circuit, in which the court bucked the recent trend of connecting prior salary with pay discrimination against females.
The EPA is a federal law that prohibits discrimination between employees on the basis of sex by paying employees of one sex less than employees of the opposite sex for equal work. It bears noting that the law applies to both sexes. Under the EPA, a Plaintiff must show that he or she is receiving different wages for “equal work.” If the Plaintiff makes that showing, the burden shifts to the employer to assert any of a number of affirmative defenses to explain the wage disparity, including: Continue Reading Is Setting Pay Based on Prior Salary the Same as Setting Pay Based on Sex?
FMLA Is Not A “Get Out Of Jail Free” Card!
I 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!
Justice Gorsuch and the ADA?
A 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?
Judge Davis’ Paean to G.G. and Other Brave Individuals Who Opposed Discrimination
The 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
Maryland’s General Assembly Just Passed Paid Sick Leave – Now What?
As you may have heard, the Maryland General Assembly has passed a bill that requires employers with 15 or more employees to provide up to 5 days of paid sick leave and smaller employers to provide unpaid sick leave. The bill, known as the Maryland Healthy Working Families Act, now heads to the Governor’s desk. Governor Hogan has promised to veto it and the lawmakers state that they will override the veto. But politics aside, what is the actual status of this bill?
There are a number of possible scenarios regarding this bill, which we will discuss in order of likelihood. Continue Reading Maryland’s General Assembly Just Passed Paid Sick Leave – Now What?
Reflections on the EEOC’s Proposed Harassment Guidance
In January 2017, the Equal Employment Opportunity Commission released proposed guidance regarding workplace harassment. Because guidance does not carry the same weight as regulations do, which require a formal notice and comment period, there is no legal requirement to solicit public comment on guidance. However, the practice of voluntarily doing so began under former Chair Jenny Yang and provides employers a valuable opportunity to make their concerns known before the Commission finalizes guidance.
To that end, Shawe Rosenthal, in conjunction with four other law firms, led the effort on behalf of the Employment Law Alliance* to submit written comments to the Commission’s proposed harassment guidance. The comment period has closed, and we expect revised guidance to issue—hopefully factoring in some of our comments below!—in a few months. Continue Reading Reflections on the EEOC’s Proposed Harassment Guidance