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Shifting Eliminated Position's Duties to Nondisabled Workers Not Evidence of Discrimination

Employers sometimes believe that eliminating a job position instead of terminating an employee for poor performance gives them a "get out of jail free" card for purposes of avoiding legal claims associated with the decision....more

Fourth Circuit Says Dishonesty on Pre-Employment Medical Questionnaire Justified Termination

The Americans with Disabilities Act prohibits employers from asking most applicants questions about their medical history before a conditional offer of employment is made....more

Sixth Circuit Expands FMLA to Include Care for Sibling When Employee Acts in Parental Role

The Family and Medical Leave Act provides unpaid job-protected leave for a qualified employee to care for a spouse, parent, or child with a serious health condition. This means that FMLA protections do not extend to employee...more

Supreme Court Denies Review of Fourth Circuit's 'Honest Belief' FMLA Defense

Earlier this year, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) issued a decision that provides employers with an important defense to some Family and Medical Leave Act...more

Noncompetes Included in Separation Agreements May Not Survive Legal Challenge

When preparing employee separation or severance agreements, we are occasionally asked by clients whether they can include a noncompetition restriction as part of the severance offer, even in situations where no noncompete was...more

EEOC Litigation Report Demonstrates Agency's Priorities

Following a "cause" finding in an Equal Employment Opportunity Commission charge of discrimination investigation, the agency issues a right to sue letter to the charging party or agrees to sue the employer on that person’s...more

Supreme Court Declines Review of Fourth Circuit Age Discrimination Standards

This week, the U.S. Supreme Court rejected a petition requesting review of a Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) decision that set a low bar for plaintiffs to plead...more

Third Circuit Says Temporary Impairment Qualifies as ADA Disability

Last month, we reported on a decision from the Sixth Circuit Court of Appeals (which includes Tennessee) concluding that an employee’s asthma did not constitute a protected disability under the Americans with Disabilities...more

Split Sixth Circuit Panel Says Asthma Not a Protected ADA Disability

In 2008, Congress amended the Americans with Disabilities Act to expand the definition of medical conditions that qualify for protections under that statute. The amendments resulted from a number of federal court decisions...more

Fourth Circuit Finds Internal Complaint About Care Recommendations Supports Wrongful Discharge Claim

North Carolina is an at-will employment state, but recognizes a limited exception from that rule for terminations that violate the state’s public policy. Courts have wrestled for years over the meaning of public policy and...more

US Supreme Court Applies Strict Test for NLRB Injunctions

In unusual circumstances arising during unionization campaigns, the National Labor Relations Board can seek a so-called Section 10(j) injunction to immediately order the employer or union to cease illegal acts associated with...more

Basing Salary on Prior Pay Risks Discrimination Claim

In recent years, a number of states and municipalities have adopted measures that restrict employers’ ability to base a new hire’s starting salary on what they made in their prior job. In the past, it was common for...more

Fifth Circuit Finds Employee's Protest of COVID-19 Measures Protected Concerted Activity

The National Labor Relations Act’s employee protections extend beyond unionized workplaces or those undergoing organizing activities. Section 8(a)(1) of the NLRA prohibits employers from retaliating against employees who...more

Admission That Business Unit Was Closed Due to Employee's Disability Precludes Dismissal of ADA Claim

When advising employers about the legal risks associated with a business reorganization, we generally advise that discrimination claims are less likely when a company closes an entire facility or department as compared to...more

Fourth Circuit Upholds Employer's Denial of Remote Work During Pandemic

During the COVID-19 pandemic and afterwards, employers have faced a growing number of requests for remote work arrangements based on a medical disability. The Americans with Disabilities Act requires employers to grant...more

Training Repayment Agreements Raise Legal Risks for Employers

A recent New York Times article described growing use by employers of training repayment agreements, or TRAs. A TRA requires an employee to repay training expenses incurred by the employer if they quit before a certain period...more

AI Credibility Judgment Tool Prompts Lawsuit Over Lie Detector Use

A number of vendors are promoting artificial intelligence-based software for use in applicant screening and hiring. These tools promise to automate parts of the hiring process and to streamline the review of applicant...more

Recent Complaints Illustrate Reverse Discrimination Issues

Following the Supreme Court’s recent affirmative action decision, legal press publications have reported about complaints and enforcement threats sent to law firms based on their diversity initiatives. In some cases, these...more

Private Equity Firm's De Facto Control Over Employer May Lead to Liability Over Termination Notices

As with many federal labor laws, the Worker Adjustment and Retraining Notification (WARN) Act imposes obligations on employers. In most situations, the employer is the entity listed on the employees’ W-2. However, in some...more

North Carolina Appellate Court Says Termination for Discussing Investigation Is Not REDA Retaliation

The North Carolina Retaliatory Employment Discrimination Act (REDA) prohibits employers from terminating or taking other adverse action against employees who complain about violation of rights protected under certain state...more

Can Employee Affinity Groups Result in Discrimination Claims?

In the wake of the Supreme Court’s Students for Fair Admissions college and university affirmative action decision last month, some employers are questioning the continuing legality of their Diversity, Equity, and Inclusion...more

NLRB Reverses Standard for Firing Employees Who Engage in Labor Confrontations

Last week, the National Labor Relations Board’s (NLRB) game of legal tennis continued when it reversed another Trump-era decision involving when employers can take disciplinary action against employees who lose their cool...more

Fourth Circuit Delays Arguments in Religious Discrimination Case for Pending Supreme Court Decision

Over the past decade, federal courts have repeatedly reviewed religious-affiliated employers' ability to avoid federal discrimination claims. Courts recognize a "ministerial exception" that prevents discrimination claims by...more

[Webinar] Are Big Changes for Employers on the Horizon? - May 24th, 10:00 am - 11:00 am EDT

2023 has already seen a number of major developments for employers in the areas of noncompetition agreements, terms of settlements and separations with employees, and more. Additionally, the U.S. Supreme Court is set to rule...more

EEOC Settlement Requires Employer To Recode AI Recruiting Tool

Last year, the Equal Employment Opportunity Commission (EEOC) expressed its concern that the growing use of artificial intelligence (AI) in recruiting software could unintentionally discriminate against persons in a protected...more

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