5. USERRA – In Escher v. BWXT Y-12, LLC, the plaintiff brought a lawsuit against his former employer alleging that the company violated the Uniformed Services Employment and Reemployment Rights Act, among other laws. The plaintiff claimed he was terminated in retaliation for complaints he made regarding the company’s designation and accounting of his military leave time. The company denied these allegations and asserted that it fired the plaintiff for doing work for his job in the Naval Reserves during company time and with company resources. The Sixth Circuit held that the plaintiff’s protected activities were not a motivating factor in his termination and affirmed summary judgment in favor of the employer. The court noted that even assuming the plaintiff could make out a prima facie case, the company could show that it would have terminated him for a valid reason. This case hinged on the ability of the employer to demonstrate its legitimate basis for the adverse employment action. In particular, the court evaluated the decision-making process, the employee’s violation of company policies, the investigation into the employee’s actions, and the temporal proximity of the employee’s protected activity and his termination.
4. Title VII – The Supreme Court addressed in Lewis v. City of Chicago whether a plaintiff who does not file a timely charge challenging the adoption of a practice—here, an employer’s decision to exclude employment applicants who did not achieve a certain score on an examination—may assert a disparate impact claim in a timely charge challenging the employer’s later application of that practice. In other words, the issue is whether an employee is required to file a charge within 300 days of being notified of his score on a written test given to applicants, or within 300 days of the various hiring rounds (which these scores were used). In a unanimous decision, the Supreme Court reversed the Seventh Circuit and held that a charge filed by one of the plaintiffs was timely, as it was filed within 300 days of the employer’s application/use of the written exam. With this decision, the Supreme Court has made clear that an employer may be exposed to liability for disparate impact claims each time it applies an employment practice.
3. FMLA – This year the Department of Labor declined to issue further Opinion Letters and announced that they would be replaced by Administrator Interpretations. Among the noteworthy Interpretations is the clarification of “son or daughter” as it applies to an employee taking FMLA leave standing “in loco parentis” to a child. The DOL explained:
The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child. 29 C.F.R. § 825.122(c)(3). Employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.
In a subsequent press release, the Department of Labor explained that “[t]his action is a victory for many non-traditional families, including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones.”
2. Social Media – On November 2, 2010, the National Labor Relations Board issued a press release regarding a complaint that it issued against a company that terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint also alleges that the company illegally denied union representation to the employee and maintained and enforced an overly broad blogging and internet posting policy. According to the press release, the NLRB investigation found that the employee’s Facebook posting constituted protected concerted activity. The hearing is scheduled for January 25, 2011.
1. GINA – Also in November of this year, the EEOC published the final regulations implementing the Genetic Information Nondiscrimination Act. Back when the proposed regulations were issued, I wrote an article for the Privacy & Data Security Law Journal addressing some common questions and answers regarding the Act. The final regulations clarify the proposed regulations and also discuss the employer “safe harbor” and its relationship with the inadvertent acquisition exception. The Society for Human Resource Management has written a helpful article addressing the discretionary and mandatory safe harbors. As noted by SHRM, since the issuance of the final regulations, there has been an uptick in the number of charges filed with the EEOC. I anticipate that this upwards trend will continue well into 2011.