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Trends in Employment Law:Pop Culture Crosses

Into the Workplace

Christie NewkirkPartner

K&L Gates

1717 Main Street 301 Commerce St.Suite 2800 Suite 3000Dallas, TX 75201 Fort Worth, TX 76102214-939-5438 817-347-5274

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Higher Standards in Workplace

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Trend

Recent Impact

Action steps

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Higher Standards

Unwelcome sexual comments No “real” investigation Liability

Sexual harassment Negligent investigation

Waffle House v. Williams (Tex.App.—Fort Worth 2007, pet. filed)

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Higher Standards

Multiple complaints / retaliation Punitive damages

Knowledge of laws Aware of duty not to retaliate

EEOC v. Stocks (5th Cir. 2007)

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Illness Everywhere

Have you watched theevening news lately?

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Leaves of Absence

Job related stress / depression Not disabled

Loved job Job did not “stress her out”

Mackey v. Children’s Medical Center (N.D. Tex. 2006)

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Leaves of Absence No travel after FMLA leave Question: Equivalent position Answer: De Minimus change

Smith v. East Baton Rouge Parish Sch. Bd. (5th Cir. 2006)

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Leaves of Absence Essential functions Less favorable treatment Individual liability

Greenlee v. Christu (S.D. Tex. 2007)

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FMLA Amendments

Effects of USERRA (12 mos. / 1250 hrs) Qualifying exigency (12 weeks) Care of a Service Member (26 weeks)

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Other FMLA Hot Issues

Disparate treatment at expiration of leave Statement of consequences Standardized letters Maximum leave provision Tentative designation

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Retaliation Claims

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Retaliation- Adverse Action

Adverse actions Reassignment Suspension without pay (reimbursed)

Would is dissuade a reasonable employee from making a claim?

Burlington Northern v. White (2006)

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Retaliation- Adverse Action

Reprimands Combative Inappropriate comments Unprofessional conduct

Not adverse action

Niu v. Revcor (Tex.App.—Fort Worth 2006)

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Retaliation – Adverse Action

Actions: Relocation of desks Vague comments by unnamed employees Transfers (requested by Plaintiffs)

Not adverse actions

McCullough v. Kirkum (5th Cir. 2006)

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Retaliation

Kelly Services employee Don’t report any more to client Fired for insubordination

Block v. Kelly Services (5th Cir. 2006)

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FMLA Retaliation Fired afternoon on day gave notice Decision made 4 days prior Court: Lack of causal connection

Norton v. City of San Antonio (W.D. Tex. 2007)

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Intergenerational Conflicts

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Intergenerational Conflicts

5 generations Demand for Gen Y exceeds supply High maintenance / High performing Work ethic v Work life balance Loyalty Praise

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Work Life Balance

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Work Life Balance

EEOC Guidance:

Family Responsibility Discrimination

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Employers Must be Mind Readers

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Mind Reading Son “hurt badly” and “skinned up” Not reasonably connected to asthma

Greenwell v. State Farm (5th Cir. 2007)

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Mind Reading Pregnant employee: Sick and can’t report to work No call / no show violation Insufficient notice for FMLA protection

Willis v. Coca Cola (5th Cir. 2006)

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Mind Reading Condition:

Hypertension / cardio vascular disease Difficulty walking

Upheld verdict ADA disabled Failure to accommodate

EEOC v. DuPont (5th Cir. 2007)

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Protection of Confidential Information

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Confidential Information

Unilateral contract Enforceable after employer accepts

Sheshunoff v. Johnson (Tex. 2006)

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Miscellaneous Trends

FLSA Attorneys fees even with de minimus recovery

Gender identity discrimination Same sex and other harassment cases

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Take Away Points:

Leave of absence policy Training “outside the box”

FMLA mind reading “Other” forms of discrimination Handling complaints Personal liability: FLSA / FMLA

Complaint procedure

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THE END