News & Analysis as of

Employee Needs More Than Speculation to Support his Retaliation Claim

To prevail on a claim of retaliation under federal law, an employee must prove that he or she engaged in a “protected activity” under an antidiscrimination statute and subsequently suffered an adverse employment action. In...more

Don't let medical absences cloud your judgment

In late January, the Tenth Circuit Court of Appeals issued a decision in Smothers v. Solvay Chemicals Inc. (No. 12-8013, 10th Cir. Jan. 22, 2014) that emphasized the importance of conducting a proper investigation and...more

Last Call! Third Circuit Court Of Appeals Rules That Employer Can Terminate Employee For Violating Strict No Alcohol Return To...

The Third Circuit Court of Appeals recently issued a decision holding that an employer's termination of an employee for violating a very broad and restrictive return to work agreement (RWA), which prohibited the employee from...more

Sixth Circuit Holds General Contractor Can Be Liable in Discrimination Suit Brought by Sub-Contractor's Employees

The Sixth Circuit Court of Appeals recently reversed a district court's ruling granting summary judgment to a general contractor on the question of whether it could be held liable to its sub-contractor's employees as a joint...more

FMLA FAQ: Can Excess Trips To The Potty Be Counted As FMLA Leave?

Q: One of our employees drinks a lot of water at work and goes to the bathroom continuously throughout the day. As a result, she uses far more than her normal breaks allow. ...more

Federal Courts Take Divergent Approaches to Jury Trials for Whistleblower Plaintiffs Under Dodd-Frank and Sarbanes-Oxley

A recurring question under the federal whistleblower laws is whether plaintiffs suing their employers for retaliation have the right to a jury trial. The Dodd-Frank Wall Street Reform and Consumer Protection Act1 appears...more

The Meaning of “But-For” Harassment: The Second Circuit Breaks Its Silence and it is not Good for Employers

In 2013, the U.S. Supreme Court held that Title VII retaliation claims must be proven according to traditional principles of “but-for” causation. Since Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), ...more

Will California Be The Next Battlefront For An Onslaught of Whistleblower Claims?

Last week, we identified five important questions employers should ask themselves to test whether they are ready for key changes in California law that are coming in 2014. Here, we take a closer look at one of those changes:...more

San Francisco Adopts Ordinance That Prohibits Caregiver Discrimination and Provides Flexible Work Arrangements for Caregivers

San Francisco recently adopted the “Family Friendly Workplace Ordinance,” which prohibits caregiver discrimination and gives employees a right to request “flexible” or “predictable working arrangements” to assist employees...more

Top Ten Policies Every Employee Handbook Should Have

An Employee Handbook is a critical communication tool that sets forth corporate goals, policies and objectives as well as the expectations demanded of employees....more

International Employment Law Review: August 2013 - Issue 4: Recent Employment Law Developments in the United States

U.S. Supreme Court Decisions - Court Limits Definition of “Supervisor” Under Federal Anti-Discrimination Law - In Vance v. Ball State University (June 24, 2013), in a 5-4 decision, a majority of the Supreme...more

Nassar’s “But For” Requirement Breaks the Chain for Retaliation Plaintiffs Relying on Temporal Proximity to Establish Causation

In a decision in favor of the University of Pennsylvania entered on August 7, 2013, the Third Circuit Court of Appeals reviewed the “but for” standard for liability under University of Texas Southwestern Medical Center v....more

Oregon Court of Appeals Continues Debate About Status of Wrongful Discharge Claims In Oregon in Kemp v. Masterbrand Cabinets, Inc.

Last week the Oregon Court of Appeals issued its opinion in Kemp v. Masterbrand Cabinets, Inc., holding that the plaintiff’s common law wrongful discharge claim was not precluded by the statutory remedies then available under...more

Does Demoting an Employee Equal Constructive Dismissal?

The British Columbia Supreme Court’s decision of Meyers v. Chevron Canada Limited, 2013 BCSC 420, demonstrates the uncertainty that can arise when predicting whether the conduct of an employer amounts to constructive...more

Fenwick Employment Brief - July 2013: Employee Claiming Retaliation Must Meet Higher Standard of Proof

In another favorable ruling for employers, the Supreme Court in University of Texas Southwestern Medical Center v. Nassar clarified that employees must satisfy a higher “but for” standard of proof to prevail in a Title VII...more

Fifth Circuit to Dodd-Frank Whistleblowers: Call the SEC First

The U.S. Court of Appeals for the Fifth Circuit's decision last week in Asadi v. G.E. Energy (USA) has been hailed as a win for employers because it requires whistleblowers who bring retaliation claims under the Dodd–Frank...more

Fenwick Employment Brief - July 2013: U.S. Supreme Court Decides Several Employment and Employment-Related Cases

Employer strictly liable for supervisor’s harassment of employee only if supervisor has hire and fire authority over subordinates - In a favorable decision for employers, the U.S. Supreme Court in Vance v. Ball State...more

Fenwick Employment Brief - July 2013

In a favorable decision for employers, the U.S. Supreme Court in Vance v. Ball State University ruled that employers are strictly liable for harassment by a supervisor where the supervisor is empowered to take tangible...more

EEOC Sues PJP Health Agency, Inc. for Age Discrimination and Retaliation

Health Insurance Broker Harassed and Discharged Employees Because of Their Age, Federal Agency Charges - NEW YORK - A health insurance broker with offices in Melville, Lake Success and Garden City violated federal law...more

Supreme Court Narrows Scope Of Employer’s Liability For Title VII Claims Against Co-workers

On June 24, 2013 in the case Vance v. Ball State University, the Supreme Court defined the scope of supervisory status as it applies to harassing co-workers under Title VII of the Civil Rights Act of 1964 (“Title VII”). ...more

Legal Alert: New Jersey Supreme Court Eases Employee Retaliation Claims

Right after the U.S. Supreme Court issued decisions favoring employers in a variety of employee lawsuits based on federal statutes, including retaliation under Title VII, the New Jersey Supreme Court has moved that state in...more

California Employment Law Notes - July 2013

Employee Must Prove That Illegal Retaliation Was The "But For" Cause Of Adverse Job Action Under Title VII - University of Tex. S.W. Med. Ctr. v. Nassar, 570 U.S. ___, 2013 WL 3155234 (2013) - The United States...more

Supreme Court Makes Defending Title VII Cases Easier For Employers; Decides To Review Noel Canning, Will Rule On NLRB Recess...

On June 24, 2013, the U.S. Supreme Court issued opinions in two cases which are clear victories for employers. First, in Vance v. Ball State University, the Supreme Court held that “an employer may be vicariously liable for...more

Employees Asserting Retaliation Must Meet Higher Causation Standard, Supreme Court Rules

The explosion of retaliation claims may skid to a halt or at least slow down after the Supreme Court's decision this week holding that plaintiffs making Title VII retaliation claims must establish that their protected...more

Supreme Court Decides Important Employment Issues: Who is a "Supervisor" for Assessing Workplace Harassment Claims and What Test...

INTRODUCTION. The U.S. Supreme Court has issued two significant employment decisions: Vance v. Ball State University (addressing the issue of who is properly called a "supervisor" when assessing workplace harassment claims);...more

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