Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Be my workplace valentine? We’ll see . . .

Posted in Harassment, Sexual Torts

Happy Valentine’s Day! (almost)

Psychology Today had a great article by social psychologist and professor Theresa DiDonato about nine questions one should ask oneself before starting a workplace romance. Of course, the article was written primarily from a psychological point of view, but I think the same questions work from a legal standpoint. Here are Professor DiDonato’s questions, with my “legal/HR” answers.

Valentine Boss.flickrCC.Dave

Do you find this Valentine to be a bit disturbing?

No. 1: Why are you thinking of mixing love and work?

Why, indeed! If things don’t work out, it’s going to be awkward, and that awkwardness can create a fertile ground for claims of sexual harassment or retaliation. There is also the problem of actual or perceived favoritism. Given all of this, I don’t want to tell you that you can’t have a workplace relationship, but if you work closely together, you might want to refrain unless you are absolutely certain that (a) he or she is the love of your life and you will be getting married, or (b) this is a very casual relationship on both sides that will end amicably with no hurt feelings. (That large area in the middle is where much of the legal danger lies.)

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$89K manager may not be FLSA-exempt, court rules

Posted in Wage-Hour

This is scary.

You’d think a person with “Manager” in her job title who was making more than $89,000 a year would be exempt from the overtime provisions of the Fair Labor Standards Act.

Not necessarily.

A federal judge in Maine ruled that Bottomline Technologies, Inc., a financial processing services company, will have to face a jury trial on the wage-and-hour claims of Debra* Colello, a former client relations manager for the company. The court ruled that there were disputed facts regarding whether Ms. Colello exercised enough “discretion and independent judgment” in her job to qualify for the administrative exemption under the FLSA. Among other things, although she made recommendations about handling customer issues, her recommendations were never adopted and may even have been mere “perfunctory requests that Bottomline sometimes discouraged.”

You think it’s bad now? Just wait until July, when the U.S. Department of Labor issues its Final Rule on FLSA exemptions. Yikes!

*The plaintiff’s first name in the court papers is “Deborah,” but her LinkedIn page spells her first name “Debra.” I figure Ms. Colello ought to know how to spell her own first name, so I’m going with the LinkedIn spelling. 

EEOC Retaliation Guidance, Part 3: A “causal connection” checklist for employers

Posted in Retaliation

This is the final installment of my analysis of the EEOC’s recently issued proposed Enforcement Guidance on Retaliation and Related Issues. Here are Part One (“You gotta be protected!”) and Part Two (“Was your employment action ‘adverse’?”).

For an employee to have a valid retaliation claim, it’s not enough that she engaged in legally protected activity or that the employer took some type of adverse action against her. The employee has to prove that the employer took the adverse action because of the protected activity.

Put another way, an employee can’t immunize herself from discipline or discharge (or other negative job consequences) simply by making a complaint of harassment or filing an EEOC charge.

In legalese, there has to be a “causal connection” between the protected activity and the adverse employment action. If there’s a causal connection, the employee wins. If there isn’t, the employer wins.


When it comes to workplace retaliation, it’s a good thing for an employer to be “disconnected.”


Based on the EEOC’s proposed Enforcement Guidance, here are eight questions an employer should ask itself before it disciplines, fires, lays off, denies a raise or promotion to, or takes any other adverse action against a “protected employee”:

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Speaking of equal pay . . . here’s a “demand-side” solution! *joke*

Posted in Equal Pay

This is too funny, and it ties in so well with my post on Friday about the EEOC’s new “pay survey” proposal. I learned about the video from the Washington Post, but I’m linking to the YouTube version to ensure that no one is blocked by a pay wall. Enjoy!

5 things I don’t like about the EEOC’s “pay survey” proposal

Posted in Discrimination, Equal Pay

You have no doubt heard that the Equal Employment Opportunity Commission proposes to require employers with 100 or more employees to start submitting compensation data with their annual EEO-1 reports.


“I’m against it.”

The proposal was announced by President Obama in a White House ceremony last week celebrating the seventh anniversary of the Lilly Ledbetter Fair Pay Act. Here’s the scoop.

The proposal could certainly have been worse. The EEOC would require the reporting to occur at the same time that employers already do their EEO-1 reporting (efficient!), proposes the use of W-2 earnings data (efficient and easy!), proposes that the survey will replace rather than supplement the proposed pay survey rule issued by the Office of Federal Contract Compliance Programs that would have applied to federal contractors (only one rule to worry about instead of two!), and proposes to delay the effective date until Fiscal Year 2017 (never do today what you can put off until tomorrow!).

All that having been said, I’m against it. Here’s why.

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Friendly reminder: Reverse discrimination is against the law, too

Posted in Discrimination

Negatives.Fabrice_de_Nola_-_Negative_photography.j.jpgPretty obvious, but a decision issued this week serves as a good reminder to employers that all race discrimination is illegal, whether it’s against members of minority groups or whether it’s against Caucasians.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit reversed summary judgment for a company that allegedly told a white worker that he was being terminated from a Mississippi River bridge construction project and not rehired because the company wasn’t meeting its minority targets for the project.

(The company denies that these statements were made, but the Seventh Circuit — correctly, I think — said that’s for the jury to decide.)

Perhaps more remarkable is the fact that the company got summary judgment at all, considering the alleged statements. Here’s a copy of the lower court decision, in case you’re curious.

Image Credit: From Wikimedia Commons.

EEOC Retaliation Guidance, Part 2: Was your employment action “adverse”?

Posted in Retaliation

What’s a “materially adverse employment action”? This is the second part in what should be a three-part series (it’s possible that we’ll need four) on the proposed Enforcement Guidance on Retaliation and Related Issues recently published by the Equal Employment Opportunity Commission.

Man with Fist.flickrCC.HobviasSudoneighm

“Allow me to inflict some materially adverse employment action on y’all!”

To recap from last week, a plaintiff in a retaliation case has to prove three things:

1. She engaged in “legally protected activity,” and

2. She suffered an “adverse employment action,” and

3. There is a “causal connection” between the legally protected activity and the adverse action.

Part one, “You gotta be protected!,” is here. This week, we’ll talk about No. 2: “Was your employment action adverse?”

What’s “adverse”?

The Supreme Court decided almost 10 years ago that “adverse employment action” was virtually anything that would deter a reasonable person in the plaintiff’s shoes from engaging in protected activity.

In plain English, that means “just about anything bad,” as long as it isn’t really trivial.

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Employers: Concerned about class actions? Look no further!

Posted in Class actions, Constangy News

Our inaugural edition of Class Action Outlook, a quarterly publication for employers on class and collective action litigation, is out, and you will not want to miss it! In order of appearance, we have Naveen Kabir on the Tyson Foods overtime collective action pending at the Supreme Court, Kate Scarbrough on the Supreme Court’s recent Gomez decision, Heidi Wilbur on the Spokeo class action pending at the Supreme Court, Dawn Amos on the California Fair Pay Act amendments and what they’ll mean for employers with employees in the Golden State, Stacy Mueller on EEOC pattern or practice litigation and how employers can best defend themselves, and Susan Bassford Wilson on e-discovery and the amendments to the Federal Rules requiring “proportionality.” Thanks very much to our Class Action Practice Group heads, Maureen Knight and Steve Moore, for creating and overseeing this very ambitious and valuable resource for employers.

EEOC Retaliation Guidance, Part 1: You gotta be “protected”!

Posted in Retaliation

The Equal Employment Opportunity Commission issued last week a proposed Enforcement Guidance on Retaliation and Related Issues that would update guidance issued in 1998. If you’re an in-house attorney or a Human Resources professional, I recommend that you read the whole thing. But to keep things digestible on this blog, I’m going to do a series of posts (three in all, I think, but I might need four) on the highlights.

Before we dig in, a plaintiff in a retaliation case has to prove three things:

  1. She engaged in “legally protected activity,” and
  2. She suffered an “adverse employment action,” and
  3. There is a “causal connection” between the legally protected activity and the adverse action.

This week, I want to talk about No. 1: “legally protected activity.”


“I’m protected. Are you?”

Most employers know that just about everything can be considered “legally protected activity” these days. There isn’t much in the EEOC’s proposed guidance that will change your mind, but for the most part I think the agency’s position is consistent with court decisions and the statutes.

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Transgender roadmap: 10 steps the EEOC thinks employers should take

Posted in Discrimination, Gender Identity Discrimination, Harassment

Road Map.flickrCC.Britt-Knee

Law360 reported yesterday morning that the Equal Employment Opportunity Commission settled a transgender discrimination and harassment lawsuit (not our Detroit-area funeral home case). Although the employer entered into the consent decree voluntarily, we now have a pretty good idea of what the EEOC thinks employers should do in dealing with employees who are transgender or have other gender identity variances.

Here are the 10 things the EEOC apparently would like to see employers do:

1) Include gender identity in your non-discrimination and no-harassment policies. If you’re a federal contractor, you should have done this a long time ago. If you’re not, then you should seriously consider adding it now.

2) Make sure your policies provide that discrimination against or harassment of individuals because of their transgender (and related) status will not be tolerated, whether the behavior comes from “employees, customers, agents, contractors, sub-contractors, clients,” or anyone else.

3) Make sure that employees understand that deliberately referring to a transgender person by his or her “biological” gender, or by his or her original name, is considered discrimination and harassment by the EEOC. Continue Reading