HR Legal Source

Title VII Prohibits Retaliation Against Certain Third Parties

In Thompson v. North American Stainless the court held that Title VII’s anti-retaliation provision protects not only those persons that actually engaged in a protected activity, but also protects those persons associated or related to such persons. Here, a female employee complained of sexual discrimination and also filed a charge of discrimination with the EEOC. Three weeks later, the company fired her fiancé, who, in turn, filed an anti-retaliation lawsuit.

The employer filed a motion for summary judgment because Title VII does not expressly prohibit third party retaliation. The Sixth Circuit denied the motion, even though it conceded that it lacked express statutory authority to do so, because it believed that it needed to go beyond the literal language of the statute in order to further the policy behind Title VII’s anti-retaliation provision.

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LEGAL ANALYSIS - The Healthy Families Act Will Make Ohio Employers Sick

By Hans A. Nilges, Esq.

Imagine that none of your employees show up to work for three days in a row. They all mysteriously reported off ill. Further, although your company policy requires a doctor’s note when taking sick leave, none of the employees provide such documentation. You call your attorney and ask for advice. You are shocked to learn that, since the Ohio Healthy Families Act (HFA) became the law, and you employ 25 or more employees, it would be illegal for you, under Ohio law, to take any disciplinary action…..Access Complete Article Here(DOC.)

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Death Threats And Racial Slurs Aren’t Direct Evidence Of Discrimination?

The Third Circuit Court of Appeals in Harris v. Cobra Construction held that the following conduct by the owner of a construction company was not direct evidence of racial discrimination: (1) waiving a sawed off shotgun at two African-American employees while describing them in racially derogatory terms; and (2) saying to the workers, “What are you black mother-f_____ looking at? Now get back to work.”

The court held that the employees presented no evidence that they were singled out because of their race. The court noted that the comments were not made “in the context of discussing the employees’ work performance or while hiring, firing, demoting, or promoting the employees.” Rather, the evidence showed that the employees were subjected to the abuse simply because they had the misfortune to be present when the owner was engaged in a heated dispute with a union’s business agent.

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LEGAL ANALYSIS - Beware of Employee Retaliation Claims: How to Minimize Your Liability Exposure

By Tod T. Morrow, Esq.

Retaliation claims comprise the fastest growing area of employment discrimination litigation. According to data from the Equal Employment Opportunity Commission (EEOC), retaliation claims rose by an incredible 41 percent from 1996 to 2002. In 2004, 28.6% of all discrimination charges filed with the EEOC involved retaliation charges….Access Complete Article Here(DOC.)

Posted in ADA, ADEA, FLSA, FMLA, OSHA, Title VII, USERRA, Workers' Compensation | No Comments »

OCRC Required To Issue Subpoenas Requested By Employers During Charge Investigations

In State Ex Rel. American Legion Post 25 the Ohio Supreme Court clarified that the Ohio Civil Rights Commission has a clear legal duty to issue subpoenas requested by employers while the OCRC is investigating a charge. The OCRC has traditionally taken the position that it did not have to issue such subpoenas, which often had the effect of denying employers access to vital information needed to defend themselves against discrimination charges. With this decision, employers now have a powerful new tool to use to when responding to discrimination charges.

Posted in ADA, ADEA, Title VII | No Comments »

LEGAL ANALYSIS - Between a Rock and a Hard Place: Self Audits Under the Fair Labor Standards Act

By Susan Chae, Esq.

Industry experts know that the single largest area of potential liability for employers comes from violations of the Fair Labor Standards Act (FLSA). In fiscal year 2004, the Department of Labor’s Wage and Hour Division (the agency that enforces the FLSA rules) collected $165 million in back wages. This represents an almost 50% increase in collections since 2001, mostly for overtime violations. Additionally, civil money damages were assessed against noncompliant employers in the neighborhood of $3.5 million in 2004. All indications are that the Wage and Hour Division will be more aggressive in instituting investigations in the coming years.

Stirring the pot even further, the new “Fairpay” rules (Title 29, Part 541 of the Code of Federal Regulations) were made effective on August 23, 2004. These rules defined and clarified “white collar” exemptions to the Fair Labor Standards Act, and represent substantive revisions to the overtime rules that hadn’t been changed for 60 years….Access Complete Article Here(DOC.)

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Terminating Employee For Unilaterally Extending Maternity Leave Without Notice Does Not Violate The FMLA

In Morr v. Kamco Industries, Inc the Northern District of Ohio held that an employer did not violate the FMLA when it terminated an employee that failed to return to work as scheduled after the expiration of her maternity leave. Here, the employee initially provided her employer a physician’s note that indicated that the employee’s estimated return date from maternity leave would be 6 weeks post-partum. After she gave birth, the employee’s doctor revised that estimate and informed the employee that she would need 7 weeks recovery time.

The employee failed to inform her employer of this change in diagnosis, but, nevertheless, took the additional time off. When she attempted to return to work, her employer informed her that she was terminated pursuant to the company’s attendance policy. Because the employer was never given notice of the need for additional leave, the court held this action did not violate the FMLA.

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More Mandatory Paid Leave Legislation Introduced In Congress

Legislation has been introduced in the United States House of Representatives and the United States Senate that would provide 12 weeks of paid leave to employees for the birth or adoption of a child, to care for a family member’s serious health condition, or to care for the employee’s own serious health condition.

The family and medical leave would be paid for by the establishment of a Family Leave Insurance Fund, which would, in turn, be financed by premium contributions from employers and employees. Employees earning $20,000 and less would receive their full salary or daily earnings, and employees making more than that amount (up to $97,000) would receive a portion of their salary or daily earnings.

The Act, as proposed in the House, would be mandatory for all employers with 20 or more employees. Small employers and self-insured individuals would have the option of voluntarily participating in the Fund. Any employee employed for at least 6 months with a covered employer, and who worked at least 625 hours during that time, would be eligible to participate in the Fund.

Posted in FMLA | No Comments »

President Expected To Sign The Genetic Information Non-Discrimination Act

With only one vote in opposition, the House and the Senate passed The Genetic Information Non-Discrimination Act, which will prohibit employers from discriminating against their employees based on their genetic information. Specifically, the Act prohibits employers from discharging, refusing to hire, or other otherwise discriminating against employees on the basis of genetic information. Group health plans and health insurers will likewise be precluded from discriminating based on a person’s genetic information. President Bush is expected to sign the Act within the next two weeks.

Posted in Title VII | No Comments »

POWERPOINT PRESENTATION - Serious Workplace Accidents: How to Minimize Your Company’s Liability

The PowerPoint materials corresponding with Attorney Tod Morrow’s recent presentation at the Builder’s Exchange can be located at the following link:

Note: These materials may take a minute or two to load, depending on your operating system.

If you have any questions regarding anything addressed in Mr. Morrow’s presentation, or would like to discuss serious workplace accidents, or other employment topics, in greater detail, please contact Mr. Morrow at tmorrow@bdblaw.com or at (330) 491-5229. Questions can also be directed to Mr. Morrow’s associate, Attorney Hans Nilges, at hnilges@bdblaw.com or at (330) 491-5293. Additional contact information can be located on the “Contributors” page of this website.

Please address any comments relating to difficulty accessing the above link to Hans Nilges at hnilges@bdblaw.com.

Posted in OSHA, Workers' Compensation | No Comments »