News & Analysis as of

Protected Activity Hiring & Firing

The NLRB/EEOC Landmine – When Does Offensive Speech Amount to Protected Activity?

Employers need to be on the lookout for instances of offensive employee speech, which may put them between a rock and a hard place as they navigate potential claims under either anti-discrimination laws or federal labor laws....more

Racist Picket Conduct Protected

by Sherman & Howard L.L.C. on

The NLRB holds – famously now – that sexist and racist conduct on a picket line is protected from adverse action unless the conduct is also violent and coercive. Despite a shot across its bow in Consolidated Communications,...more

Two Employees, Social Media, An Unlawful Policy ... What Could Possibly Go Wrong?

The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology. In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change. Rather, all...more

No Union Protection for Employees “Sick” Over No Paid Absences

Can employees protest a company sick leave policy with an internet meme that suggests the company’s food is not safe? Not according to a recent Eighth Circuit decision. MikLin (doing business as Jimmy John’s in Minnesota)...more

Long-term loss of earnings and whistleblowing

by Dentons on

In Small v. Shrewsbury and Telford Hospitals NHS Trust the Court of Appeal has held that where a claimant's employment has been terminated due to a protected disclosure the tribunal can award compensation for long-term loss...more

Court Rules Request for Religious Accommodation Is Not “Protected Activity” for Title VII Retaliation

by Seyfarth Shaw LLP on

Seyfarth Synopsis: A recent decision by a federal district court in Minnesota held that a religious accommodation request is not “protected activity” under Title VII. In defending retaliation litigation, employers should...more

Grudges Are Forever

by Sherman & Howard L.L.C. on

Even a gap of five years between protected conduct and an adverse action isn’t enough to show the two are not connected. In Baines v. Walgreen Co., No. 16-3335 (7th Cir. July 12, 2017), the plaintiff had worked for the...more

Attack Falsely Alleging Sandwich Maker Engaged In Unhealthy Practices Not Protected Activity Concludes Appeals Court, Overruling...

Labor disputes are passionate affairs. Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified. The exact point at which the stridency of an...more

CPA Can’t be a Whistleblower for Non-Public Entities

Reyher v. Grant Thornton, LLP analyzed whether an employee of a CPA firm is protected by the anti-retaliation provisions of the Dodd-Frank Act for lodging complaints with an employer about suspected illegal activity regarding...more

Second Circuit Holds Pro-Union Sentiment Outweighs Impropriety of Profanity-Laden Rant Against Supervisor, His Mother, and “His...

by Dorsey & Whitney LLP on

Use of profanity by employees, whether in the workplace, outside the workplace, or on social media, presents difficult legal issues for the employer, as highlighted by a recent Second Circuit Court of Appeals decision...more

Union Adherent’s Antics Not Protected By Act, NLRB Rules

The NLRB recently issued a rare decision completely dismissing all allegations against an employer; rarer still because it was unanimous. In Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017) the NLRB was...more

Is Calling Your Boss “a Nasty Mother******” Protected Activity?

by Shipman & Goodwin LLP on

My colleague Gary Starr returns today with a decision from the Second Circuit (which covers Connecticut) that may just surprise you. Then again, if you’ve been following this line of reasoning, perhaps not....more

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

by Fisher Phillips on

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

NLRB: Warning Coworker that Job is at Risk Inherently Protected Activity

by Baker Donelson on

Earlier this month, the National Labor Relations Board (NRLB) ruled that an employee who was fired after warning a co-worker his job was at risk had engaged in inherently protected activity and must be reinstated. The case,...more

Termination of Employee for FMLA Abuse Affirmed by Fourth Circuit

by Poyner Spruill LLP on

FMLA abuse is an increasing problem oftentimes leaving employers searching for options. However, the Fourth Circuit Court of Appeals gave employers a win in Sharif v. United Airlines, Inc., when it affirmed an employer’s...more

Opposing Employer Actions Directed at General Public Not Protected Activity

by Seyfarth Shaw LLP on

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

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

by FordHarrison on

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

OSHA Promulgates Final Rule on ACA Whistleblower Complaints

by Conn Maciel Carey LLP on

On October 12, 2016, the Occupational Safety and Health Administration (“OSHA” or the “Agency”) announced that it had issued a Final Rule establishing procedures for the filing, evaluation, and litigation of whistleblower...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

Seventh Circuit Issues Ruling Interpreting False Claim Act Whistleblower Amendments

The Seventh Circuit recently issued a decision interpreting the anti-retaliation provisions of the False Claims Act (FCA). The decision provides important clarifications about how courts may interpret recent amendments to...more

What qualifies as a ‘request for accommodation’ under the ADA?

by Kirton McConkie PC on

Reasonable Accommodations - According to the Equal Employment Opportunity Commission (EEOC), “Title I of the Americans with Disabilities Act of 1990 [ADA] . . . requires an employer to provide reasonable accommodation to...more

Fourth Circuit Interprets Meaning of "Protected Activity" Under 2010 FCA Whistleblower Amendments

by Bass, Berry & Sims PLC on

The U.S. Court of Appeals for the Fourth Circuit recently affirmed dismissal of an FCA complaint for failure to state a claim under the FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h). In U.S. ex rel. Carlson v. Dyncorp...more

Fourth Circuit Issues Ruling Interpreting False Claim Act Whistleblower Amendments

The Fourth Circuit recently issued a decision interpreting the anti-retaliation provision of the False Claims Act (FCA). The decision provides important clarification about how courts may interpret 2009 and 2010 amendments...more

‘Where’s the beef?’ The FCA and its whistleblower protections

by Kirton McConkie PC on

Thirty-two years ago, 81-year-old actress Clara Peller filmed a commercial for the Wendy’s fast-food chain. She mar­veled at a hamburger with an enormous fluffy bun and grum­bled the immortal words: “Where’s the beef?” Since...more

Saying “You’re Fired” Could Bring Labor Pains 

by Fisher Phillips on

An Ohio employer recently learned the hard way that employers need to be cautious when it comes to communicating with striking employees about permanent replacements. By mistakenly telling them that their employment had been...more

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