Employment Law Year in Review walshc.ymcdn.com/sites/ · Topics for Discussion: ... EEOC v....
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Transcript of Employment Law Year in Review walshc.ymcdn.com/sites/ · Topics for Discussion: ... EEOC v....
Employment Law Year in Review (aka the dumb things people do at work)
Jill L. Walsh, Esquire
SHRM-SCP, SPHR, CCP
(610) 332-7028
Presented by:
WWW.TTHLAW.COM
SHRM-LV Annual Conference
October 6, 2015
McCourt v. Gatski Commercial Real
Estate Servs. (D. Nev. May 5, 2015)
�Let’s start with a bang…
�Co-worker tells plaintiff that she is “bangin” and then clarifies this, stating that she is “f---able”
�Plaintiff reports to female supervisor and requests meeting with business owner
o Supervisor’s response: speaking to owner is forbidden and she would be disciplined for it
�Co-worker’s comments continue over next weeks:
o “wanted to know what [her] panties smell[ed] like”
o told plaintiff she was a “MILF”
3Title VII – Sexual Harassment
McCourt v. Gatski, cont.
Supervisor’s Response:
“I know that you think he is making sexual comments towards you but I disagree. Because he referenced your panties and what they smell like is just weird and not offensive. Because he says you're f---ble is not really offensive either. He's a guy and you work with guys. Ignore it and smile.”
4Title VII – Sexual Harassment
McCourt v. Gatski, cont.
� But wait, there’s more…
� Continued verbal and physical harassment:o Co-worker grabbing plaintiff's rear end, sending suggestive and
aggressive emails, putting his hand down the back of her shirt to feel her bra strap, and inviting plaintiff to go home with him for a “quickie” at lunch time.
� Plaintiff complains again. Supervisor’s emailed response:o “Your position is easily replaced. [Harasser] makes the company
money! Don't you need insurance for your son? Think about it!”
� Soon after this email, supervisor fires plaintiff
� Needless to say, Court denied Defendant’s motion to dismiss Title VII and IIED claims
5Title VII – Sexual Harassment
Young v. UPS
�SCOTUS, 03/25/15
�Pregnancy Discrimination Act, 42 U.S.C. §
2000e(k)
�Pregnancy-blind light duty policy: UPS offered
light duty to employees who were injured but
not to pregnant employees requiring similar
light duty (for example, lifting restrictions)
6Pregnancy Discrimination Act
Young v. UPS, cont.
�Holding:
o No blanket accommodations for pregnant workers
but employers shall consider “the extent to which
an employer’s policy treats pregnant workers less
favorably than nonpregnant workers similar in
their ability or inability to work.”
7Pregnancy Discrimination Act
Mach Mining, LLC v. EEOC
� SCOTUS, 04/29/15
� Before suing an employer the EEOC must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”
� Conciliation provides an employer with an opportunity to resolve a discrimination claim without resorting to formal litigation
� Here, EEOC sent one letter to Employer following reasonable cause finding and another letter, one year later, before filing suit
8EEOC Conciliation
Mach Mining v. EEOC, cont.
�Court held that:
o A court may review EEOC’s conciliation efforts
o Review is narrow in scope and EEOC is given
discretion to determine process
o EEOC must try to engage employer in order to give
the employer a chance to remedy the allegedly
discriminatory practice
o File suit only after conciliation fails
9EEOC Conciliation
Lowe v. Atlas Logistics Grp. Retail Servs.
�N.D. Ga. May 5, 2015
�Unknown employee began habitually defecating in one of Employer’s warehouses
�Employer requested some of its employees, including the Plaintiffs, to submit to a cheek swab
�Cheek cell samples sent for DNA analysiso Plaintiffs not a match
�With the culprit apparently still on the loose, Plaintiffs filed suit under the Genetic Information Nondiscrimination Act (GINA)o GINA prohibits employers from requesting genetic
information from its employees
10GINA
Lowe v. Atlas Logistics, cont.
�Summary judgment granted for…PLAINTIFFS!
�GINA makes it “an unlawful employment
practice for an employer to request, require,
or purchase genetic information with respect
to an employee.”
�Court rejected Employer’s argument that
genetic tests prohibited by GINA must relate
to an employee’s propensity for disease
11GINA
Greer v. Mondelez Global, Inc.
� Third Circuit Court of Appeals, 10/22/14
� Title VII/race discrimination/retaliation
� Plaintiff claims forced to resign due to racial comments
� Stupid or actionable? Hostile work environment is actionable only if it is “so severe & pervasive” it alters the working conditions and creates an abusive working environment
� Environment must be more than “hostile in the plaintiff’s view;” it must be “objectively hostile.”
� Offensive comments, jokes and jibes insufficient to establish a Title VII claim absent a change in a term, condition or privilege in employment
BRACE YOURSELVES…STUPID COMMENTS ARE EVERYWHERE
12Title VII - Race Discrimination/Retaliation
Braun v. Wal-Mart Stores
�Supreme Court of Pennsylvania, 12/15/14
�Wage Payment & Collection Law (WPCA) & PA
Minimum Wage Act (PMWA)
�Paid rest breaks & “off the clock” work
�“Hours worked” defined
�Judgment of nearly $200M
�187,979 hourly employees
13Wage Payment
Hansler v. Lehigh Valley Hospital
�Third Circuit Court of Appeals, 06/22/15
�Employee submits doctor’s note with request for intermittent FMLA leaveo Note does not list medical diagnosis
�Employee misses five days of work
�Employer advises employee that FMLA denied and concurrently terminates employee for absenteeism
�Employee thereafter diagnosed with diabetes and high blood pressure
�Held: Employer required to advise employee in writing of deficient medical certification to afford the employee an opportunity to cure the deficiencies
14FMLA – Deficient Medical Certification
EEOC v. Abercrombie & Fitch
�SCOTUS, 06/01/15
�Applicant wearing head scarf applies for a job
�Without confirming if religious
accommodation requested, Abercrombie
refuses to hire applicant, because headscarf
conflicted with its employee “Look Policy”
Title VII – Religious Discrimination 15
EEOC v. Abercrombie & Fitch, cont.
� EEOC prevailed in the District Court
� Tenth Circuit reversedo Failure-to-accommodate liability attaches only when applicant
provides employer with actual knowledge of a need for an accommodation
� The Supreme Court held that a job applicant seeking to prove a Title VII disparate treatment claim need only show that the need for a religious accommodation was a motivating factor in the prospective employer's adverse decision
� Applicant need not show that Employer actually knew applicant's practice was a religious practice that required an accommodation
Title VII – Religious Discrimination 16
DiFrancesco v. A-G Administrators, Inc.
�Eastern District of Pennsylvania, 09/04/14
�Wrongful Termination and ADEA Claim
�Employee raises name-calling, such as “grandma,” “lunch bag,” and “old hillbilly”
�Employer claims: an “overall strain on Human Resources”
�Plaintiff must show that the adverse employment action would not have occurred but for the employer's consideration of age
o In other words, Plaintiff failed to establish her termination occurred because of age
18Age Discrimination
Bonkowski v. Oberg Indus.
� Third Circuit Court of Appeals, 05/22/15
� On Nov. 14, Plaintiff, suspended for allegedly sleeping on the job, claims shortness of breath & chest pain
� Plaintiff clocks out; admitted to hospital just past midnight (Nov. 15)
� Released in the early evening of Nov. 15, w/doctor’s note
� Terminated Nov. 16 for walking off the job on Nov. 14
� Plaintiff sues (wrongfully termination/FMLA rights)
� Employer argued Plaintiff did not have a “serious health condition” because he did not have in-patient care, which requires an “overnight stay” in the hospital
� District Court Overnight Stay Rule: admitted before sunset on one day and discharged after sunrise the next day
FMLA – Serious Health Condition 20
Bonkowski v. Oberg Industries, cont.
�Third Circuit Overnight Stay Rule: employee must be in the hospital for a substantial period of time from one calendar day to the next calendar day as measured by the individual’s time of admission and time of discharge
�Employers must strictly review the time of day the employee is admitted and the time of day the employee is discharged to determine whether there has been an “overnight stay” in order to have received “in patient care” under the FMLA
FMLA – Serious Health Condition 21
Stewart v. FedEx
� Superior Court of Pennsylvania, 04/17/15
� Wrongful termination/violation of public policy
� Employee fired for licensed firearm in car glove box on company property
� Absent a statutory or contractual provision to the contrary, either party may terminate an employment relationship for any or no reason
� Public Policy Violation: “so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it”
� Neither U.S. nor PA Constitution bestow the right to carry a concealed firearm or transport a loaded firearm in a vehicle
22Firearms - Public Policy Violation
Triple Play Sports Bar and Grille
�National Labor Relations Board, 08/22/14
�Social Media Policies
�Section 7
�Concerted Activities
o Griping?
o “Liking” a post
o Replying to a post
23Social Media
Andersen v. Mack Trucks, Inc.
�Eastern District of Pennsylvania, 07/30/15
�Another victory for the Employer!
�Male HR employee laid off due to merger
�Companies are permitted to make business decisions which result in the retention of one employee and the termination of another employee for any reason that is not predicated upon an impermissible factor
�The Court does not act as a “super-personnel department that re-examines the employer’s business decisions”
Layoff Decisions 24
Questions/Comments?
Questions/Comments?Jill Walsh: (610) 332-7028 / [email protected]
www.tthlaw.com
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