News & Analysis as of

Protected Activity

Chris Lazarini Provides Insight on Broker's Employment Retaliation Claims

by Bass, Berry & Sims PLC on

Bass, Berry & Sims attorney Chris Lazarini provided insight on a case in which a former commodities broker claimed her former employers retaliated against her for filing a civil rights complaint by causing her new employer to...more

See You In Court! – November 2017

by Shipman & Goodwin LLP on

As the football season wound down in Nutmeg, Bob Bombast went on a Facebook rant against the players in the NFL who take a knee during the playing of the National Anthem. Coach Rock, veteran coach at Nutmeg Memorial High...more

Methinks thou doth protest too much! FYI, only ‘reasonable’ opposition is protected

by FordHarrison on

It seems that every day the news is full of stories about employees (whether they are NFL players or Hollywood starlets) protesting unfair treatment. Usually, when an employee complains about discrimination, harassment, equal...more

Protected Conduct or Hate Speech? Managing Diverse Viewpoints in the Workplace

by Akerman LLP - HR Defense on

Recent events have underscored the difficulties employers face in managing diverse workforces in which employees hold a wide-range of political perspectives. The mere discussion of the news of the day can create divisive...more

UPDATE: California Federal Court Permits Former Bank Internal Auditor’s Whistleblower Claims to Proceed

A California federal court—in Erhart v. BofI Holding, Inc., 2017 U.S. Dist. LEXIS 14755, Case No. 15-cv-02287 (S.D. Cal. Sept. 11, 2017)—recently denied BofI Federal Bank’s (“BofI’s”) motion to dismiss the Sarbanes-Oxley...more

For Any Lawful Reason: Firing an at-will employee under dubious circumstances need not lead to liability if the reason for the...

by Dorsey & Whitney LLP on

A recent decision from the Sixth Circuit Court of Appeals highlights the distinction between firing an employee for personal or politically expedient reasons (which may be entirely legal) and firing an employee because of his...more

Calling President An Idiot May Be Protected Speech (But Maybe Not)

by Shipman & Goodwin LLP on

“President Trump is a Big Fat Idiot” or, for that matter, “Secretary Clinton is a Sore Loser.” Let’s suppose you see one of your employees tweeting one of these expressions on Twitter during non-work hours from a personal...more

District Court Permits Transgender Person Diagnosed With Gender Dysphoria to Sue Under Americans With Disabilities Act

by Tucker Arensberg, P.C. on

Blatt v. Cabela’s Retail, Inc., No. 5:14-CV-04822, 2017 WL 2178123, at *2 (E.D. Pa. May 18, 2017). District Court for the Eastern District of Pennsylvania denies employer’s motion to dismiss failure to accommodate and...more

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

You CAN Ask Your Employees To Be Happy! Federal Appeals Court Reins In National Labor Relations Board (NLRB)

by SmithAmundsen LLC on

Much has been written and discussed about the National Labor Relations Board’s (NLRB) attack on handbook policies over the past several years. The NLRB has found what many consider to be run-of-the-mill, standard policies...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

FCA Deeper Dive: FCA Retaliation Claims

by Bass, Berry & Sims PLC on

The FCA provides protections for whistleblowers in connection with their whistleblowing activities. To establish that an employer retaliated against an employee in violation of 31 U.S.C. § 3730(h), an employee must...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

NLRB’s “Biggest Idiot” Test Benchslapped

by Sherman & Howard L.L.C. on

The NLRB analyzes employer policies to see if the policies “chill” employees’ rights to engage in concerted protected activity under the NLRA. The NLRB says it applies a “reasonable person” test, which asks “would a...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

Executive Labor Summary - May / June 2017

NEWS & ANALYSIS - Trump nominations on track to fill open seats on the NLRB - After a slow start, President Trump is taking the steps to fill more slots at various agencies, including the National Labor Relations Board. On...more

Second Circuit Upholds NLRB Ruling That Employer’s “No Recording” Policy Violated National Labor Relations Act

by McCarter & English, LLP on

Employers need to be mindful about policies prohibiting employees from recording or videotaping in the workplace, as such rules, if not drafted carefully, may run afoul of the National Labor Relations Act (the Act). This...more

The NLRB is Still in Business – Watch Your Handbooks

by Baker Donelson on

While employers wait to see if the Trump Administration will produce a kinder, gentler National Labor Relations Board (NLRB), the NLRB is still in the business of punishing employers for workplace policies that ostensibly...more

Second Circuit Upholds NLRB Order Finding Grocer’s No Recording Policy Unlawful

by McGuireWoods LLP on

On June 1, the Second Circuit issued a summary order in Whole Foods Market Group, Inc. v. NLRB, affirming the National Labor Relations Board’s order in Whole Foods Market, Inc., 363 NLRB No. 87 (2015), where the Board found...more

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