Spring Management Update- March 2012

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In This Issue:

Eleventh Circuit Affirms Sex Discrimination in Transgender Termination Case

Executive Summary: The Eleventh Circuit recently held that a governmental entity's termination of a transgender employee based on her non-conformity with gender stereotypes constituted sex discrimination in violation of the 14th Amendment's Equal Protection Clause. See Glenn v. Brumby. Although the facts were limited to a government employee, this decision impacts both public and private employers because it clarifies that while the 14th Amendment and Title VII do not specifically recognize transgender or transsexual individuals as members of their own protected class, the law still affords them workplace protections based on sex and gender if their employers subject them to adverse employment action because their appearance and/or behaviors do not align with gender stereotypes.

Communication of FMLA Policy is Key in Defending FMLA Interference Lawsuit

Executive Summary: A recent Sixth Circuit decision emphasizes the importance of informing employees how the employer will compute leave covered under the Family and Medical Leave Act (FMLA). In Thom v. American Standard, Inc., the court affirmed a partial summary judgment for an employee on his FMLA interference claim, finding the employer failed to inform the employee how it was computing his FMLA leave. The Sixth Circuit also held that the employer acted in bad faith when it terminated him, entitling the employee to double compensatory damages under the statute.

Changes to NLRB Deferral Procedure

Executive Summary: On January 20, 2012, the NLRB's Office of the General Counsel released GC Memo 12-01, which dramatically changes the NLRB's procedures on the pre-arbitral deferral of unfair labor practice charges. Effective immediately, as a standard practice, the Regional offices will begin to fully investigate all 8(a)(1) and 8(a)(3) unfair labor practice charges that the Regions determine will not likely be resolved within a year through the parties' collective bargaining processes. Notably, the memo also states that Regions may revoke deferral and fully investigate any currently pending 8(a)(1) and 8(a)(3) unfair labor practice charges that were filed more than one year ago.

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