Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Court sheds light on “pregnancy accommodation” obligation after Young v. UPS

Posted in Discrimination, Evidence, Pregnancy

Pregnant_womanA federal appeals court panel has come out with a decision interpreting the U.S. Supreme Court’s decision last year in Young v. UPS, and the result wasn’t too good for the employer.

The Sheriff’s Department of Ulster County, New York, provided light duty for employees with work-related injuries but didn’t provide it for anyone else. Plaintiff Ann Marie Legg, a corrections officer at the County Jail, requested light duty for her pregnancy — in 2008 — and was denied it because her pregnancy was obviously not a work-related condition. Just about any employer in 2008 would probably have done the same.

Ms. Legg was forced to go out on maternity leave, but after she had the baby, she returned to work . . . and filed a discrimination charge, followed by a lawsuit. A federal judge in New York dismissed the pregnancy discrimination claim on the ground that the County had a neutral policy of not providing light duty except for on-the-job injuries. Ms. Legg had other claims that went to trial. At trial, she won one claim and lost the rest.

Unfortunately for the County, final judgment in the case wasn’t entered until August 2014, and both sides appealed. You can probably guess the rest — the appeals were still pending in March 2015, when the Supreme Court issued its decision in Young v. UPS, which arguably meant that the district court’s dismissal of the pregnancy discrimination claim wasn’t valid any more.

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Your labor and employment reading for this weekend.

Posted in Constangy News, Discrimination, FOCUS, Labor Relations, Labor Trafficking, Non-Competition, Only in California

Federal protection for trade secrets, “suitable seating,” inadvertent labor trafficking, Uber’s status as an employer — whew!

Be sure to check these out if you haven’t already:IMG_20111008_124300

*Billy Hammel of our Austin Office and Bill McMahon of our Winston-Salem Office (and my next-door neighbor), with Anna Rothschild of our Washington D.C. Metro Office, are digging into the federal Defend Trade Secrets Act, which passed the House Wednesday and should be signed into law imminently by President Obama. A thorough client bulletin is on the way, but in the meantime, here is an eblast that Bill McMahon sent to our clients and friends yesterday morning:

The U.S. House of Representatives voted 410-2 yesterday in favor of the Defend Trade Secrets Act, which would allow companies to bring civil actions for trade secret theft under the federal Economic Espionage Act. The Senate version passed unanimously on April 11, 2016, and President Obama favors the legislation and is expected to sign it into law.

As the House and Senate votes indicate, the legislation had bipartisan support, as well as the support of the U.S. Chamber of Commerce, Microsoft Corp., and General Electric. The law would not preempt state trade secret laws but would provide new, additional, federal remedies.

We will have a comprehensive client bulletin on this legislation and its implications in the near future. In the meantime, if you have any questions, please contact any member of our Trade Secrets and Noncompetition Practice Group

*Our newest publication, California Corner, will provide employers with updates on what is going on in the Golden State. Expanding on an earlier blog post, the inaugural edition features an in-depth analysis of the state Supreme Court’s “suitable seating” decision. By Jade Brewster and Executive Editor Steve Katz of our Los Angeles-Century City Office.

But, wait! There’s more!

*The March-April edition of the Executive Labor Summary is out. David Phippen of our Washington D.C. Metro Office has the latest on the Persuader Rule, the Supreme Court’s 4-4 tie decision in Friedrichs v. California, Volkswagen and its troubles with the UAW down in Chattanooga, and Uber’s settlement and its status as a “contractor.” AND a rare labor union endorsement for The Donald. It’s yuge!

*Our Spring 2016 Retailer includes “Hiring 101 for Retail Employers” by Susan Bassford Wilson of our St. Louis Office, charge-filing statistical trends from the Equal Employment Opportunity Commission, and blurbs of interest for retail employers.

*Are you a labor trafficker without meaning to be? You’ll know after you read the excellent “Help Wanted: Avoiding Inadvertent Participation in Labor Trafficking” by Elizabeth Joiner of our Jacksonville Office.

Oh, and one more thing — if you haven’t already subscribed to FOCUS, our new women’s leadership blog, please go over there and do it right this minute.

Image Credit: From flickr, Creative Commons license, by Zack Copley.

Lego-based workplace harassment will NOT be tolerated.

Posted in Harassment, Unemployment, Violence

You’ve heard of sex-based harassment, race-based harassment, and disability-based harassment.

But have you ever heard of Lego-based harassment?

Shawn Roy was terminated from his job because he was allegedly creating and posting on the internet violent and sexually-oriented videos using Legos that allegedly bore resemblance to his supervisors and co-workers. I viewed the one video of his that I was able to find on YouTube, and it seems like a boring and uninspired Lego re-creation of Quentin Tarantino’s Kill Bill. Here’s the video:

On the other hand, the employer was a nursing home with presumably incapacitated patients, so I can see why a Kill Bill remake may have put Mr. Roy’s co-workers on edge.

In any event, the New York Unemployment Insurance Appeal Board ruled that Mr. Roy’s videos rendered him ineligible to receive unemployment compensation, and the state Appellate Division affirmed.

Employers should immediately update their policies and training to clearly and explicitly prohibit Lego-based harassment.*

No actual Legos were harmed in the creation of this blog post.

*I’m kidding! I’m kidding!

Employer guide to Family and Medical Leave Act

Posted in Family and Medical Leave Act, Wage-Hour

The U.S. Department of Labor, Wage and Hour Division, has issued a new guide for employers on the Family and Medical Leave Act. I’ve only thumbed through it, but it seems to be pretty nicely done, and has some cute comics about the FMLA request/approval process.

(Seems like Will and Brenda could be a little friendlier, though.)

Here it is.

UPDATE (4/29/16): Here is the new FMLA poster, which is a free pdf download from the Department of Labor website. Employers who prefer to keep using the 2013 version may do so without being in violation. Thanks to my friend and colleague Kate Bischoff for calling my attention to the new poster!

Ugh. HR consultant hit for $1MM in unpaid overtime

Posted in Wage-Hour

No one is immune from wage-hour payouts. Not even a Human Resources consultant.


Bye-bye, love!

California HR consulting firm TriNet has reportedly agreed to pay approximately $1 million in overtime and liquidated damages to 267 employees. The payment is in settlement of a wage-hour investigation conducted by the San Francisco office of the U.S. Department of Labor.

According to the DOL, TriNet increased employees’ salaries and believed that the higher salaries were enough to make the employees exempt. The DOL said that TriNet had settled a similar claim in 2012.

However, a spokesperson for TriNet said that salaries were increased to reflect the employees’ increased job responsibilities, not to “guarantee” that the employees would be exempt. The TriNet spokesperson said that the company cooperated in the DOL investigation and did not admit any liability.

The report of the settlement, in the April 18 edition of Bloomberg BNA, did not indicate the job titles or responsibilities of the employees who will receive the settlement. However, after visiting TriNet’s website, I would guess it is IT people.

Image Credit: From flickr, Creative Commons license, by Purple Slog.

Vindicated, and it feels so good . . .

Posted in Discrimination, Equal Pay

The Washington Post “Fact Checker” column gave Two Pinocchios last week to the “79-cent Pinocchios Two.flickrCC.HeatherMpay gap factoid.” That’s the factoid that says women make only 79 cents for every dollar that men make. Debunking that dubious statistic has been my life’s work.

And “factoid” was the Post‘s word, not mine!

I am not just a blogger. I am a prophetess.

Image Credit: From flickr, Creative Commons license. Two Pinocchios by Heather M.

You won’t want to miss . . .

Posted in Benefits, Constangy News, FOCUS

Dana Thrasher, head of our Employee Benefits Practice Group, offers her reflections on the U.S. Department of Labor’s final Fiduciary Rule and what it means for those who provide investment advice.

And, if you haven’t done so already, please do get over to visit our new FOCUS blog for Women Leaders in the Workplace and their friends. Subscription is free. It’s cooler than a Harriet Tubman $20 bill! (Well, maybe not quite that cool. But still very cool.)

North Carolina’s HB 2: The final analysis

Posted in Discrimination, Employment at Will, Gender Identity Discrimination, Lawyers!, Sexual Orientation

This will be my last “analysis” post on the wrongful discharge provisions of North Carolina’s HB 2. (I know you are heartbroken!)

I’ll continue to post on breaking HB 2-related news as it develops.

Several commenters disagreed with my contention that Charlotte’s human rights ordinance, which was amended to include LGBT rights and then nullified by HB 2, would have been unconstitutional or preempted even without the enactment of HB 2. After having reviewed the issue in more detail, I agree that the “validity” issue is not as clear-cut as I had believed.

NC retro postcard.flickrCC.orionpozo

On the day of my “Ignore the Hype” post, I received an email from Charlotte City Attorney Robert Hagemann with his legal analysis attached. Mr. Hagemann gave me permission to publish his email to me and his memorandum, and I’m reproducing the email here in full (with the exception of email addresses):

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Welcome to FOCUS, our new women’s leadership blog!

Posted in Constangy News, FOCUS

Today marks the launch of FOCUS, our firm’s new blog for women leaders in the workplace (and their friends and supporters). The inaugural edition features posts by Sarah Phaff of our Macon Office on Women’s History Month, and Heidi Wilbur of our Denver Office on Overcoming Stereotype Threats (and Butterflies).

FOCUS masthead

In addition to Sarah and Heidi, other editors and regular contributors will be Amy Beth Dambeck of our Princeton Office, Taren Greenidge of our New York City Office, Lori Mans and Heather Owen of our Jacksonville Office, and Mallory Schneider Ricci of our Nashville Office.

Welcome to the blogosphere, ladies!