Category Archives: Employment Practices Liability

Is a Single Threat Enough to Trigger Liability For Retaliation?

Retaliation claims account for almost half of all EEOC claims filed nationwide. The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.

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What Constitutes Harassment? Impact of New Law

Retaliation and harassment are the most commonly filed employment law claims nationwide. After the Fourth Circuit’s recent decision in Boyer-Liberto v. Fountainbleau Corp., No. 13-1473 (4th Cir. May 7, 2015) lawsuits alleging hostile work environment and harassment will only be more difficult for employers to dispose of. The Fourth Circuit held that a single instance of harassment may create an actionable hostile work environment claim, and that an employee can be protected from retaliation when complaining about harassment, even if the purported harassment is ultimately not severe enough to create a hostile work environment.

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Supreme Court Clarifies EEOC Conciliation Process

A growing concern of late among employers has been the often heavy-handed tactics of the EEOC with respect to its statutory obligations to pursue pre-suit conciliation processes. Though the EEOC is required by Title VII of the Civil Rights Act of 1964 to attempt settlement negotiations between an employer and the allegedly wronged employee prior to suing for a judicial intervention, many employers felt that the EEOC has been overly aggressive with its pre-suit tactics. The end result for these employers has been a rise in avoidable, costly, and occasionally reputation-damaging litigation.

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Proposed Regs on Employer Wellness Programs

The vast majority of large employers offer some sort of wellness program, according to a recent survey. We've posted about the risks and benefits of these programs in the past. Now, more than ever, employers with such programs should take note. The EEOC recently issued its highly anticipated proposed regulations amending how the ADA applies to these increasingly popular programs. The proposed rule is designed to provide guidance on the extent to which the ADA permits employers to use incentives to encourage employees to participate in wellness programs. The proposed regulations identify employee health programs, define the nature of a voluntary program, clarify the permissible incentives an employer may offer, and explain the notice and confidentiality requirements.

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Anxiety Over the ADA

The Americans with Disabilities Act (ADA) is designed to protect people with disabilities from discrimination in the workplace. Under the ADA, an employer must provide a reasonable accommodation to an employee with a disability if the employee requests an accommodation. Employers should take note of a recent decision that includes a new class within the definition of disability. In Jacobs v. N.C. Administrative Office of the Courts, the court reversed the district court and found that social anxiety disorder is a protected disability under the ADA.

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Public and Private E-mails Don’t Mix

Hillary Clinton recently made headlines for using her personal email account for business purposes during her tenure as Secretary of State. This high profile example provides us with an opportunity to reflect upon what is commonplace for some. It can be tempting for employees to use personal email accounts to conduct corporate business, particularly when working remotely. However, the highly sensitive nature of Clinton’s job raised questions over the security of using a non-work email account to transmit information. Depending on the nature of your job or the emails that you send, there are risks when mixing personal and business e-mails.

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Court Adopts New Test in Harassment Cases

Professionals strive to maintain safe and welcoming workplaces for employees and guests. To further this goal, many firms have incorporated into their employment manuals anti-harassment policies and training. Yet, despite such precautionary steps, an employer cannot guarantee an environment free of wrongdoers. In the unfortunate event of a claim, it is up to the court to determine whether an employer that took proactive measures to protect employees is nonetheless liable in employment related harassment claims.

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Decision Limits Defenses to FLSA Overtime Claims

You've heard it before, here and likely elsewhere, of the risks of FLSA overtime lawsuits. Yet, these suits continue to make headlines. Simply put, qualified employers must pay employees at least 1.5 times their regular wage for every hour worked in excess of 40 hours per week. This applies to certain professionals who, of course, employee non-exempts personnel. Whether it's tax season, preparing for trial or meeting a tight deadline, professionals may ask employees to work beyond 40 hours and therefore may be subject to FLSA's requirements. But what if the employee is also to blame? In certain jurisdictions, employers defending FLSA suits have claimed that it was the employee who is responsible for violating the FLSA and therefore the employer is off the hook. A recent decision suggests that this defense may no longer be viable.

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Employer Liability for Privacy Breach?

Professionals are often entrusted with confidential information. Ethical rules as well as federal and state laws limit when such information may be accessed by professionals and under what circumstances it may be disseminated. Sure, professionals may be held accountable for errors that result in the unintended disclosure of confidential or sensitive data. However, liability is not limited to the professional directly responsible for the breach; rather, employers may be on the hook too. In fact, the employer may be responsible even if the employee’s conduct was illegal or in violation of company policy.

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Company Wellness Programs: More To Love or The Biggest Loser? 

Reportedly nearly 2/3 of us resolve each new year to improve our fitness level (yet ¾ of us don’t achieve that goal). Maybe our employers can help? Employers are beginning to offer financial incentives to workers who take part in wellness programs that include screenings for blood pressure, cholesterol and body mass index. But, these programs are under scrutiny by the EEOC, which recently filed suit targeting wellness programs deemed involuntary. The lawsuits bring into focus what seem consider an inconsistency between the Affordable Care Act (“ACA”) and the Americans with Disabilities Act (“ADA”).

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