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Employment Discrimination Report Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Category Archives: Employee Termination

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NLRB’s “Refined” Joint-Employer Test: Beware the Outsourced Employee

Posted in Employee Hiring, Employee Termination

In a highly anticipated decision, the NLRB today departed from three decades of an accepted standard for joint employment status and issued a new test that makes it far more likely that, even if a company does not directly employ an individual, it may be liable for employment torts and other encumbrances. (See Browning-Ferris Industries, 362… Continue Reading

Come Join Me for the Webinar “Drafting Severance and Confidentiality Agreements Amid New EEOC, NLRB and Now SEC Scrutiny”

Posted in Employee Termination, Equal Employment Opportunity Commission

I am pleased to be a co-presenter at this webinar on September 9, 2015.  The EEOC and NLRB have been challenging severance provisions that they feel may stop an employee or former employee from cooperating with a charge filed with the agency.  The SEC also has recently been asking companies to provide copies of their… Continue Reading

Potential Liability From Your Long Forgotten Vacation/PTO Policy

Posted in Employee Termination, General Employment Matters, Sick Leave

Often employers will neglect or overlook revising their vacation and/or paid time off (PTO) policies, which are buried in the employee handbook that was last revised a half-dozen years ago. For many, this is a big mistake. Depending on your jurisdiction, a poorly drafted vacation/PTO policy can carry significant potential liability. If a company’s vacation/PTO… Continue Reading

How Much Money Do You Make?

Posted in Employee Termination, Equal Pay Act, General Employment Discrimination

This will soon be a question Connecticut employees may ask each other without repercussions.  Connecticut legislators have passed H.B. 6850 which makes it illegal for employees to prohibit their employees from discussing their wages.  The bill will be signed by the Governor as he was the one who urged lawmakers to pass the bill in… Continue Reading

No Workplace Relief for Keyboard Tough Guys in USSC Decision

Posted in Employee Hiring, Employee Termination, Harassment

Did you ever have an employee in your workplace defend inappropriate remarks by becoming an armchair constitutional scholar and citing the First Amendment to justify the right to make  comments?  Next time that happens, kindly remind your John Marshall In Residence that the First Amendment only protects them from government action, not discipline in the… Continue Reading

Be Careful of Not So Random Random Drug Tests

Posted in Americans with Disabilities Act, Employee Hiring, Employee Termination, General Employment Matters

A judge in California has ruled that a fired black supervisor can proceed with claims of racial discrimination based solely on a comment that he was driving a “pimpmobile” and the fact that he was randomly selected for drug testing three times in a nine-month period while a white supervisor was never selected for drug… Continue Reading

Hey Boss, Stop Harassing Me

Posted in Employee Termination, Equal Employment Opportunity Commission, Sexual Harassment

Generally, if an employee is going to complain of harassment by a supervisor, in my experience, the complaint is raised to another person, such as another manager or Human Resources.  A lot of employees simply do not feel comfortable having that conversation with their bosses. Of course, if an employee does have that conversation with his… Continue Reading

Faruqi Sexual Harassment Case Is Still a Cautionary Tale

Posted in Employee Termination, Harassment, New York City Human Rights Law, Sexual Harassment

Lawyers, and I suspect a good deal of employers, watched the Marchuk v. Faruqi & Faruqi case with a great deal of interest.  The allegations after all were quite scandalous — namely that Juan Monteverde, one of Faruqi’s high profile partners, had sexually harassed Marchuk and raped her.  Some of the interest may have been… Continue Reading

$185 Million Punitive Damages Against AutoZone: How Did They Get There?

Posted in Employee Termination, Gender Discrimination, Retaliation

Whew. Let’s just take a moment for that to sink in.  As we reported on Monday, $185 Million in punitive damages were awarded Monday against AutoZone.  This was after the jury awarded $872,000 in compensatory damages on Friday. You are probably asking yourselves how in the world this happened.  I have to say, based on some… Continue Reading

Do Accused Harassers Have a Right to Be Heard?

Posted in Employee Termination, Harassment

Today, I read an interesting opinion piece in The Boston Globe about how a sexual harassment policy nearly ruined Patrick Witt’s (the former quarterback for Yale University) life. Witt, who is now a law student at Harvard University wrote an op-ed criticizing Harvard University Sexual and Gender-Based Harassment Policy. The article raises interesting questions about… Continue Reading

Fired Pregnant Employee Offered Job Back After Our Blog Post!

Posted in Employee Termination, Pregnancy Discrimination

Boy, do we have clout or do we have clout! Just two days after we posted about a NYT article which reported that an employee with a high-risk pregnancy was fired because her doctor refused to let her work overtime, the NYT reports today that the employer said it was all just an “unfortunate misunderstanding” — and that… Continue Reading

Onionhead Religion at Root of EEOC’s Latest Complaint

Posted in Employee Termination, Equal Employment Opportunity Commission, Religious Discrimination

The online news is abuzz with discussions about the EEOC’s latest lawsuit against United Health Program Services based in Syosset, New York.  According to the complaint, United Health forced its employees to engage in various activities such as holding hands, praying, burning candles and telling co-workers “I love you.” I must admit that I had never… Continue Reading

Here’s Your Check, Now Don’t Let the Door Hit You on the Way Out

Posted in Employee Termination

We received some interesting reader comments from our April 15th post Tired of That Unmotivated Employee?  Pay Them to Quit. Most people who wrote back thought the idea was a good one: Rod Brown, Employer Advocate at AskRodBrown.HR noted “Hard costs and benefits aside, what I like about the strategy is that employees must decide whether… Continue Reading

EEOC Settles Retaliation Suit filed On Behalf of Plant Manager who Terminated Harasser for $75,000

Posted in Employee Termination, Retaliation

The EEOC has announced that it has reached a settlement with Winfield Rubber of Alabama to resolve claims filed by a manager who responded to a complaint of harassment.  Now, admittedly, we only have the press release to go on, but if these facts are true, we hope even the greenest of HR professionals would… Continue Reading

Loose Lips Sink Ships — and Settlements

Posted in Age Discrimination, Employee Termination, Employment Litigation

A man in Florida is learning the hard way that this old adage is true.  Patrick Snay, the ex-headmaster of Gulliver Schools Inc. settled an age discrimination and retaliation suit he brought when his contract was not renewed.  The settlement agreement contained a rather standard confidentiality agreement that prohibited the disclosure of the existence or… Continue Reading

12 Guidelines for Employees to Insure You Survive the Office Holiday Party With Your Job Intact

Posted in Employee Termination, Sexual Harassment

Most times when we are posting on this blog, we are directing our comments to employers.  This holiday season we thought we might speak directly with employees in an attempt to limit the number of calls we get in the next week or so from HR folks regaling us with tales of bad behavior at… Continue Reading

The Top 10 Reasons (In Quebec) Not To Prematurely Terminate An Employment Relationship

Posted in Employee Termination, General Employment Matters

We came across this great article by Maria Valente Fernandes and Justine Laurier of the Quebec law firm of Borden Ladner Gervais LLP which sets out a simple checklist on why you should not terminate an employee prematurely. They write that “When faced with difficult employment situations, employers can sometimes act hastily, including opting to quickly… Continue Reading

Employee Fired For Refusing Boss’s Racist-Laced Order To Fire African-American Employee

Posted in Employee Termination, Race Discrimination

Taking an adverse employment action against an employee for complaining of discrimination or filing a complaint or charge of discrimination is retaliation under all of the anti-discrimination laws.  So is taking an adverse employment action against a non-complaining employee who refuses to be complicit in a discriminatory act. An EEOC attorney recently said, “Retaliation charges continue… Continue Reading

Employers Need to Be Careful How They Access Employees’ Facebook Accounts: Part 2

Posted in Employee Termination, Family Medical Leave Act, Leave Laws

We recently posted about an arbitration decision that reminded employers that the Stored Communications Act could impact how employers gain access to social media accounts. (See August 19th post). Soon New Jersey employers will also have to make sure that they are complying with New Jersey’s Facebook Privacy bill. The bill specifically prohibits employers from demanding user… Continue Reading