Adverse Employment Action

News & Analysis as of

Texas Court Finds Overtime Restrictions Could Be a Materially Adverse Employment Action in FLSA Retaliation Claim

The Texas Court of Appeals for the Fourteenth District recently reversed and remanded a judgment in favor of an employer on an employee’s claim of retaliation under the Fair Labor Standards Act (FLSA). The court found there...more

No Longer Giving Your Employee a “Warm Welcome” or saying “Good Morning”? Court Rules that Could be Evidence of Retaliation

A recent decision from a federal court in New York serves as a reminder to employers in South Carolina and North Carolina of just how difficult an employee’s allegations of retaliation can be to challenge, and how employers...more

Florida Whistleblower Act Requires Showing of Actual Violation, Federal Court Rules

Florida’s private-sector Whistleblower Act (“FWA”) protects only those employees who can show an actual violation of a law, rule, or regulation, a federal district court has held. Graddy v. Wal-Mart Stores East, LP, No....more

Beware What You Share – Disclosure of Medical Information Results in Retaliation and Interference Claims

A United States District Court in Florida thwarted an employer’s attempt to toss the FMLA claims of an employee who sued after his medical condition was disclosed to co-workers who subsequently made fun of him. The employee...more

Ex-GC Awarded $8 Million For Retaliatory Firing

A California federal jury awarded Sanford Wadler, former General Counsel of Bio-Rad Laboratories, $8 million for his claims against his former employer under the whistleblower provisions of Sarbanes-Oxley (SOX) and the...more

Developing a PIP that will make employees comeback heroes—Tom Brady style

As an HR professionals, we are often called upon to assist managers in addressing concerns with employees who appear to be falling behind company expectations. How can we encourage employee “comebacks” and assist supervisors...more

Eighth Circuit Affirms Dismissal of MHRA Reprisal Claim Finding No Evidence of Pretext

In Sieden v. Chipotle Mexican Grill, Inc., No. 16-1065 (January 26, 2017), the Eighth Circuit Court of Appeals reiterated its view that an employee fails to establish pretext for an employer’s adverse employment action where...more

The Federal Railroad Safety Act — An Employer’s Nonretaliatory Reasons for Discharging an Employee Must Be Considered in Context...

The Federal Railroad Safety Act (FRSA) prohibits a rail carrier from retaliating against an employee because the employee engaged in certain activities protected by the statute, including the reporting of a workplace injury....more

The Election’s Tilt on the Supreme Court and The Impending Ruling in McLane v. EEOC

President-elect Trump’s election injects uncertainty into the Supreme Court’s makeup and its future rulings, including for employment-related cases. Because the Senate has not held confirmation hearings on Merrick Garland,...more

An Employer’s Horror Story For Friday The 13th: Retaliation Claim Survives 13-Year Gap

January 2017 is one of those rare months including a Friday the 13th, which might bring to mind a horror movie where a seemingly vanquished killer somehow rises to his feet – once again! – to wreak havoc on his stunned...more

Opposing Employer Actions Directed at General Public Not Protected Activity

Seyfarth Synopsis: An employee who expresses opposition to an employer’s policies and practices that affect members of the general public is not engaging in an activity that FEHA protects, because the activity is not opposing...more

EEOC Performance and Accountability Report Shows Increase in Charge Filings for FY 2016

On November 16, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) published its annual Performance and Accountability Report (PAR), revealing an increase in charge activity for FY 2016. According to the PAR, the...more

Finally! Something That's Not "Protected Activity" in California

It turns out that “protected activity” sufficient to make out a retaliation claim in California is not as broad as it may sometimes seem. On November 9, 2016, the Court of Appeal affirmed summary judgment for the employer in...more

After being told that she should just “quit” if she felt unsafe, dismissed employee awarded $15,000 in damages

A charity has been ordered to pay a dismissed employee $15,000 in damages after dismissing her shortly after she had raised safety issues, in violation of the Occupational Health and Safety Act. The charity ran retail...more

What’s an “Implied” Request for an ADA Reasonable Accommodation?

Seyfarth Synopsis: A divided panel of the Eighth Circuit recently decided that an employer may be required to assume or infer from the circumstances that an employee is seeking a reasonable accommodation – even when no...more

Did You Know…SCOTUS Ruling on Personnel Decision based upon Perceived Political Affiliation Impacts Public Employers

The U.S. Supreme Court recently ruled on a matter involving “perceived affiliation”, bringing clarity to the matter, where the circuits provided discordant rulings. As a result, personnel actions based upon even mistaken...more

E.D. Pennsylvania Limits Protected Activity Under SOX

In Westawski v. Merck & Co., No. 14-cv-3239 (E.D. Pa. Oct. 18, 2016), the Eastern District of Pennsylvania granted Defendant Merck & Co. (Company) summary judgment on Plaintiff Joni Westawski’s (Plaintiff) SOX whistleblower...more

Another Party Enters ACA Enforcement and HIPAA Privacy and Security Enforcement Expands

OSHA Joins the ACA Enforcement Regime - Effective on and after October 13, 2016, employers need to watch their mail from the Occupational Safety and Health Administration (“OSHA”) for notices related to ACA retaliation...more

OSHA Clarifies Its “Just Say No” to Automatic Post-Accident Drug-Testing Position

How do employers reconcile automatic drug-testing required by workers’ compensation laws with the provisions of OSHA’s new Rule saying that automatic testing could be retaliatory? Following our recent blog on that issue, many...more

OSHA Issues Final Rule On Complaints Under Affordable Care Act's Anti-Retaliation Provision

The Affordable Care Act (ACA) added Section 18C to the Fair Labor Standards Act (FLSA) to prohibit retaliation against employees who engage in certain activities protected by the ACA. Responsibility for receiving and...more

Owner/Trustee of 401(k) Plan Accused of Having Eyes Wide Shut on Fiduciary Duties

Last June I blogged about the trend of participant fee class actions moving down to smaller 401(k) Plans. Occasionally, class actions are brought based on other breaches of fiduciary duties, particularly those involving...more

Terminating the walking dead employee: What would Negan do?

Like many of you, I am still reeling from the brutal season opener of The Walking Dead. Looking at the episode through the lens of an employment lawyer, a few thoughts came to mind: first, Negan’s managerial style is a tad...more

EEOC Issues First Retaliation Guidance in Almost 20 Years

The Equal Employment Opportunity Commission (EEOC) recently issued its first enforcement guidance on employment-related retaliation in almost 20 years. The Final Guidance is in response to numerous court rulings on...more

How does Pennsylvania’s new medical marijuana law compare to NJCUMMA?

Recently, I participated in a panel discussion for the Greater Lehigh Valley Chamber of Commerce’s 2016 Healthcare Summit. The discussion focused on the workplace implications of Pennsylvania’s medical marijuana law, which...more

Decision 2016: A Refresher on Politics in Your Workplace

Over the next few weeks, millions of Americans will cast their votes, concluding what has been a particularly contentious election cycle. Until then, as Election Day approaches and employees’ political passions continue to...more

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