ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is ...
The Tenth Circuit recently reaffirmed that employers may lawfully enforce a policy against surreptitious recordings.
In Spagnolia v. Charter Communications, LLC, the United States Court of Appeals for the Tenth Circuit unanimously affirmed a District of Colorado order granting employer Charter Communications, LLC’s (“Defendant”) summary judgment on claims filed by plaintiff Heather Spagnolia (“Spagnolia”), who asserted that she was fired in retaliation for making reasonable requests for lactation accommodations. The issue before the appellate court was whether Defendant’s proffered reason for terminating Spagnolia (secretly recording meetings with her supervisors in violation of company policy) was pretextual.
Both courts agreed that Spagnolia’s violation of the policy against surreptitious recordings was a lawful basis for termination, and that Spagnolia failed to show that this was pretextual.
Background
In 2017, Spagnolia moved to Colorado to work for Defendant as a Regional Operations Center Specialist. From April to July 2019, Spagnolia took leave under the federal Family and Medical Leave Act to give birth to her second child. When she returned to work in July 2019, Spagnolia’s supervisor mistakenly permitted her to take paid lactation breaks, even though Defendant’s written policy provided for unpaid lactation breaks. During that time, Spagnolia’s lactation breaks lasted for an average of two hours per day, and sometimes up to three hours—in addition to her lunch break and regular paid breaks.
On November 1, 2022, in Dusel v. Factory Mutual Ins. Co., the First Circuit Court of Appeals held that “close temporal proximity” alone does not establish pretext as this evidence “must be considered alongside the . . . record.” Nor does mere close temporal proximity establish pretext where the employer has a legitimate business reason for taking adverse action against the employee, and more particularly, where the employer subsequently discovers the employee’s misconduct in a separate, unrelated matter. Dusel is a win for employers because it signals that engaging in protected activity will not immunize an employee from the consequences of misconduct that violates company policy if the employer enforces its policy consistently and documents the reasons underlying the employee’s discipline.
As featured in #WorkforceWednesday: This week, the Occupational Safety and Health Administration’s (OSHA’s) vaccine emergency temporary standard (ETS) is currently in the hands of the Sixth Circuit, while New York employers have several updates to look out for in 2022.
October has brought a weekly flurry of changes to Michigan’s COVID-19 legal landscape. [1] On Thursday October 22, 2020, Governor Whitmer added to this recent activity by signing three bills into law that provide employers with significant liability protection and employees with job protections related to COVID-19.
Employer Protections: Liability Shield
Titled the “COVID-19 Response and Reopening Liability Assurance Act,” HB 6030 provides employers with immunity from liability for a “COVID-19 claim” as long as the employer acted in compliance with all federal ...
As has been reported by the New York Times, NBC, and other outlets, asset-management firm TCW is defending a lawsuit filed by a former fund manager, Sara Tirschwell, charging the firm with gender discrimination and retaliation, among other allegations. Ms. Tirschwell’s lawsuit has received media attention not only because of the substantial damages that she demands (in excess of $30 million), but also—and perhaps, principally—because the suit has been characterized as Wall Street’s first public brush with the #MeToo movement.
The basic contours of the dispute are ...
Don’t forget – April 1 marks the beginning of a new set of sexual harassment training requirements in New York City. While the training requirement began across New York State on October 9, 2018 (and must be completed by October 9, 2019), the City imposes additional requirements on certain employers. Both laws require training to be provided on an annual basis.
While the State law requires training of all New York employees, regardless of the number of employees in the State, the City law applies only to employers with 15 or more employees. However, when counting employees ...
Featured on Employment Law This Week: The Occupational Safety and Health Administration (OSHA) has issued a final rule for handling retaliation under the Affordable Care Act (ACA).
The ACA prohibits employers from retaliating against employees for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. The ACA also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms in the ACA. OSHA’s new final rule establishes procedures ...
In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision. On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or ...
[caption id="attachment_1461" align="alignright" width="113"] Nancy L. Gunzenhauser[/caption]
On March 3, 2016, the EEOC issued a one-page fact sheet aimed at assisting start-ups and small businesses understand their responsibilities under the various federal employment laws. The fact sheet, which is available in over 30 languages, reminds employers that:
- employment decisions cannot be made on the basis of protected categories
- employers should establish policies that do not disparately impact employees on the basis of protected categories
- men and women must be provided ...
Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith. The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.
Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith. The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.
Following is an excerpt:
ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is ...
Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith. The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.
Following is an excerpt:
ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is ...
On August 4, 2015, the SEC issued an "Interpretation of the SEC's Whistleblower Rules Under Section 21F of the Securities Exchange Act of 1934." (pdf). Unsurprisingly, and consistent with the position that it has been taking in amicus briefs on the issue, the SEC states that a whistleblower need not report suspected wrongdoing to the Commission in order to be protected by the anti-retaliation provisions of Dodd-Frank. Rather, internal whistleblowing that is protected under the Sarbanes-Oxley Act is protected activity sufficient to state a claim under Dodd-Frank, according to ...
Can an employee who blows the whistle on alleged securities law violations within the company (and is therefore protected by the anti-retaliation provision of the Sarbanes-Oxley Act), but does not blow the whistle externally to the SEC, also invoke the more advantageous anti-retaliation protections of the Dodd-Frank Act in a private lawsuit? Or is Dodd-Frank limited to protecting external whistelblowers? There is a growing split of authority on this question among various federal appellate and district courts. On June 17, 2015, the Second Circuit heard oral arguments on this ...
By John F. Fullerton III and Jason Kaufman
Almost four years after it was enacted in 2010, the full impact of the Dodd Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) on the enforceability of predispute arbitration agreements is not completely clear. Some whistleblower retaliation claims are still subject to mandatory arbitration agreements, while others plainly are not, depending upon when the arbitration agreement was executed, the statute under which the claim is brought, and the jurisdiction in which the employer and employee find themselves.
By David Jacobs and Amy B. Messigian
We would like to call your attention to a significant change to the whistleblower statute in California that went into effect on January 1. The statute, Cal. Lab. Code section 1102.5, has been substantially expanded beyond its prior form to now protect employees from retaliation for making internal complaints or even potential complaints about suspected violations of federal, state or local law.
California previously protected employees from retaliation for reporting reasonably suspected violations of state or federal laws to a ...
By David Jacobs and Amy B. Messigian
We would like to call your attention to a significant change to the whistleblower statute in California that went into effect on January 1. The statute, Cal. Lab. Code section 1102.5, has been substantially expanded beyond its prior form to now protect employees from retaliation for making internal complaints or even potential complaints about suspected violations of federal, state or local law.
California previously protected employees from retaliation for reporting reasonably suspected violations of state or federal laws to a ...
Our colleague Amy B. Messigian at Epstein Becker Green recently posted “Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII” on the Health Employment and Labor blog, and we think retail employers will be interested.
Following is an excerpt:
In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for causation ...
Our colleague Amy B. Messigian at Epstein Becker Green recently posted “Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII” on the Health Employment and Labor blog, and we think hospitality employers will be interested.
Following is an excerpt:
In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for
Our colleague Amy B. Messigian at Epstein Becker Green recently posted “Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII” on the Health Employment and Labor blog, and we think financial services employers will be interested.
Following is an excerpt:
In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for
Our colleague Julie Saker Schlegel at Epstein Becker Green recently posted “Supreme Court Holds That Only Employees Who Have Authority to Take Tangible Employment Actions Constitute Supervisors for the Purpose of Vicarious Liability Under Title VII” on the Retail Labor and Employment Law blog, and we think hospitality employers will be interested. Following is an excerpt:
In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment ...
On March 5, 2013, the U.S. Second Circuit Court of Appeals clarified the burden-shifting framework applicable to whistleblower retaliation claims under Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A. In Bechtel v. Administrative Review Board et al., (pdf), the Court issued a decision, consistent with prior decisions of several other Circuits, that affirmed the burden of proof standard applied by the Administrative Review Board (ARB) in its decision, which affirmed an administrative law judge’s (ALJ) decision that had dismissed the ...
On December 1, 2011, the Superior Court of New Jersey, Appellate Division, affirmed dismissal of a whistle-blowing and defamation lawsuit based in part on application of the New Jersey Health Care Professional Responsibility and Reporting Enhancement Act. In Senisch v. Carlino, A-6218-09T3 (N.J. App. Div. Dec. 1, 2011), the court held that a health care entity which had reported negative, but truthful, information to another health care entity about a former health care professional’s termination of employment could not be liable for doing so.
In this case, the ...
The EEOC has reported that it receives more charges of retaliation than any other type of employment discrimination charge, and that there are thousands of cases involving allegations of illegal retaliation filed every year. Retaliation is often prohibited by statute, but the Supreme Court has expanded the scope of actionable retaliation lately, holding that there was a cause of action for retaliation even though the statute in question did not expressly cover the situation at issue.
The Fair Labor Standards Act (FLSA) prohibits discrimination against an employee “because ...
The U.S. Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., __ U.S. __ (March 22, 2011), holds that an employee’s oral complaint of a violation of the Fair Labor Standards Act (“FLSA”) constitutes protected conduct under the FLSA’s anti-retaliation provision.
EBG partner Frank C. Morris, Jr., discusses in an EBG Act Now Advisory the fact that the Kasten decision is merely the latest in an ever-growing series of cases where the Supreme Court has broadly interpreted protections against retaliation and for whistleblowers. The EBG Act Now ...
EBG Partners Peter M. Panken, Frank C. Morris, Jr., Peter A. Steinmeyer, and Michael S. Kun discuss the U.S. Supreme Court’s recent decision in which the Court significantly expanded employee protections against retaliation by employers. In Thompson v. North American Stainless, LP, __ U.S. __ (Jan. 24, 2011), the Court held that protection from retaliation extends not only to those employees who themselves oppose alleged discrimination or file a charge or otherwise participate in a proceeding, but also to the fiancé of an employee who filed a charge of discrimination against ...
By David W. Garland and Allen B. Roberts
Major provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) will gain substance and vitality only with amplifying interpretive rules. On December 17 the period closed for submitting comments on rules proposed by the Securities and Exchange Commission (SEC) to implement whistleblower provisions added in a new Section 21F to the Securities Exchange Act of 1934 (Exchange Act). With the comment period having closed, and final rules expected to be implemented in the Spring of 2011, this is a good time to take account of the proposed rules regarding the statute’s anti-retaliation provisions and their potential impact on employers.
Dodd-Frank authorizes bounty awards to eligible whistleblowers who voluntarily provide original information to the SEC about a violation of the federal securities laws leading to a successful enforcement action and resulting in a monetary sanction exceeding $1,000,000. It is not surprising that much of the analysis and media attention generated by Dodd-Frank concerns the bases on which the SEC will make determinations about paying potentially enormous bounty awards that can range from 10% to 30% of the amount of monetary sanctions.
Section 21F also protects whistleblowers against retaliation by their employers, with the scope of protection circumscribed by the statutory definition of a whistleblower. Rather than providing protection equally for internal disclosures to the employer and external disclosures to authorized agencies and authorities, as is seen commonly in whistleblower statutes, Section 21F protects only certain external disclosures. It defines a whistleblower narrowly as any individual, acting alone or jointly, who provides information relating to a violation of the securities laws to the SEC in the manner prescribed by the SEC.
[Ed. Note: We thank our colleague Richard D. Tuschman for this post, which was originally published on EBG’s Florida Employment & Immigration Law Blog]
An employee claiming Whistleblower protection under the Sarbanes-Oxley Act must have actually believed that his company’s conduct was illegal in order to state a claim under the Act, according to a recent decision by the Eleventh Circuit Court of Appeals, Gale v. U.S. Department of Labor, Case No. 08-14232 11th Cir. June 25, 2010) (pdf).
The case arose when Michael Gale was terminated from his employment at World Financial Group (“WFG”). Gale filed a Whistleblower complaint with the Occupational Safety and Health Administration, which enforces the SOX Whistleblower provisions. Gale alleged that he was terminated because he opposed decisions made by company officers relating to waste and misuse of corporate funds, and because he raised concerns regarding the alleged violation of SEC rules and regulations.
Under SOX, a publicly traded company and its officers are prohibited from discharging an employee for providing information to a supervisory authority about conduct that the employee “reasonably believes” constitutes a violation of federal laws against mail fraud, wire fraud, bank fraud, securities fraud, any SEC rule or regulation, or any provision of federal law relating to fraud against shareholders. 18 U.S.C. § 1514A(a)(1).
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