Imagine this: you are an employer in California, and you recently hired a new employee.  You ran your own background check, which did not turn up any criminal convictions.  However, the employee’s job duties include submitting online applications to a government agency, which requires the employee to complete a Live Scan background check with the Department of Justice.  The Live Scan reveals that the employee has a past criminal conviction that will prevent her from submitting the applications.  You terminate the employee, and she tells you the conviction was judicially dismissed.  What do you do?
Continue Reading Dismissed Criminal Convictions in California

The California Department of Fair Employment and Housing last month filed an enforcement action in Los Angeles Superior Court against Riot Games, Inc. to compel compliance with its ongoing investigation into allegations of gender discrimination, sexual harassment, sexual assault, and retaliation.  While the identified claims are broad, the primary thrust appears to be the contention that female employees at Riot Games are paid less than their male counterparts. 
Continue Reading DFEH Files Enforcement Action For Company’s Alleged Refusal To Cooperate In Systemic Discrimination Investigation

A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries.
Continue Reading OSHA Clarifies Stance on Anti-Retaliation Measures to the Relief of Employers

Last week, the United States Supreme Court released its decision in Digital Realty Trust v. Somers, where the Court unanimously adopted a narrow reading of the Dodd-Frank Act’s anti-retaliation “whistleblower” provision.  The Court held that the provision applies only to individuals who report securities violations directly to the Securities and Exchange Commission.
Continue Reading Supreme Court Narrowly Interprets Dodd-Frank’s Definition of Whistleblower

On January 21, 2016, the EEOC announced that it will seek public input on proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws. The EEOC issued its last guidance update on the subject of retaliation in 1998. The EEOC’s 73 page draft guidance is available for review and the 30-day input period ends on February 24, 2016.
Continue Reading EEOC Seeks to Expand Retaliation Claims in Proposed Enforcement Guidance – Public Input Sought

For years, there has been nearly universal agreement among the courts that managers do not engage in “protected activity” for retaliation claim purposes under most employment laws when they raise concerns about compliance issues in the regular course of performing their job duties. The traditional reasoning held that a manager whose job includes evaluating and/or reporting compliance issues, and who does so in furtherance of his or her job duties, should not become cloaked in anti-retaliation protection for merely doing the job he or she is employed to do. Instead, to engage in protected activity, the manager must step outside his or her role as a manager and become adversarial to the employer.
Continue Reading 9th Circuit Tosses Aside “Manager Rule” for FLSA Retaliation Cases; Holds HR Director May Pursue Claim

On Tuesday, the United States Supreme Court held that the whistleblower protections that apply to employees of publicly traded companies under Section 1514A of the Sarbanes-Oxley Act, also  extend to employees of private contractors and subcontractors that serve those public companies.


Continue Reading Supreme Court Holds Sarbanes-Oxley Whistleblower Provision Covers Employees of Private Contractors

A surgeon recently brought suit against his employer, in Staveley-O’Carroll v. Penn State Milton S. Hershey Medical Center, alleging that he was fired in violation of the Family and Medical Leave Act (“FMLA”).  No. 1:13-cv-01555-YK (M.D. Pa. filed June 18, 2013). Interestingly, the surgeon is not claiming that he was entitled to, requested, or took FMLA leave.  Rather, he claims that he was retaliated against for defending his secretary’s FMLA rights.

Continue Reading Does The FMLA Protect a Supervisor’s Right To Defend a Subordinate’s Leave Of Absence?

EMPLOYMENT DECISIONS

Vance v. Ball State University: Narrow Definition of Supervisor in Harassment Suits
In Vance, the Supreme Court announced a narrow standard for determining which employees constitute “supervisors” for purposes of establishing vicarious liability under Title VII. In a 5-4 decision, the Court decided that a supervisor is a person authorized to take “tangible

The U.S. Department of Labor provides general information and compliance guidance regarding numerous wage, hour, employment, and labor laws via “fact sheets” which are available to employees, employers, and the general public. Fact sheets can serve as helpful reference and compliance material for employers. On December 23, 2011, the DOL issued three new fact sheets on the issue of unlawful retaliation.  These newly released fact sheets address retaliation under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Workers Protection Act (“MSPA”).


Continue Reading U.S. Department Of Labor Issues New Retaliation Fact Sheets