Despite the “#MeToo” Movement, it’s still not uncommon for workers to make comments concerning a co-worker’s sexual practices. Nor is it uncommon for employers to successfully defeat sexual harassment claims based on such conduct by citing the well-established case law that discrimination statutes do not mandate a pristine work environment – shop-talk is not actionable.
In a win for employers in the State of West Virginia, the Supreme Court of Appeals of West Virginia overturned a lower court’s decision that an employment arbitration agreement was unenforceable in Hamden Coal, LLC v. Varney. The lower court agreed with the employee on every relevant issue, finding that arbitration claims are viewed differently in an employment context, that the agreement was a contract of adhesion, that the agreement lacked consideration, that the agreement was unconscionable, and that the employee’s claims fell outside the agreement. The Supreme Court, however, overturned each finding and took the additional step of directing the court to enter an order dismissing the civil action and compelling arbitration.
California’s intermediate appellate state court recently ruled in Terris v. County of Santa Barbara that a county employee failed to demonstrate that alleged vulgar, derogatory remarks about homosexuals made by her former employer’s CEO were connected to her termination of employment. As a result, the court upheld summary judgment in favor of the employer and against the former employee in her wrongful termination action.
The area of LGBT rights in the workplace has garnered a great deal of attention in recent years as a split has grown among the courts and among federal agencies as to whether Title VII prohibits sexual orientation discrimination. Under the Obama Administration, the Department of Justice argued that Title VII’s prohibition on sex discrimination also included sexual orientation and gender identity. Recently, however, the Trump Administration’s Department of Justice filed an appellate brief in the Court of Appeals for the Second Circuit in which it argued that Title VII does not apply to sexual orientation.
Wellness programs in the workplace are generally based on the belief that as employees lose weight, stop smoking, eat more healthfully, and lower their cholesterol, their employer will reap a drop in absenteeism and health care costs. With that hope in mind, employers are often willing to offer a financial reward to encourage employees’ participation. The Equal Employment Opportunity Commission (“EEOC”) has long been concerned about whether the financial reward offered makes such wellness programs “involuntary” such that the wellness programs fail to comply with the Americans with Disabilities Act (“ADA”) and/or the Genetic Information Nondiscrimination Act (“GINA”). Previous S&J blog posts have reported the EEOC’s actions with respect to wellness programs over the years, including the EEOC’s issuance of final ADA and GINA regulations addressing wellness programs. Those regulations have been challenged in court by the AARP, and you can expect changes in the regulations as a result. This post will bring you up to speed on the litigation and what you should watch for going forward.
Pennsylvania’s Commonwealth Court recently issued an opinion, which, while arising in the unemployment compensation arena, may have broader implications for today’s contingent workforce. In Lowman v. Unemployment Compensation Board of Review (January 24, 2018), the Court was called upon to decide whether a claimant, who had been laid off from his job as a behavioral health specialist, engaged in self-employment by becoming a driver for Uber. To perform his duties for Uber, the Claimant used his own phone and car, paid for all related expenses (fuel and maintenance), had to have insurance, a driver’s license, and vehicle registration, set his own hours, could refuse assignments, and could drive for others. Additionally, he earned approximately $350 per week, showing a frequent and prolonged relationship with Uber—not occasional and limited to earning some extra money on the side.
I was recently asked if an employer may require an employee who was taking leave under the Family and Medical Leave Act (“FMLA”) to return to work after the employee was seen working his second job—refereeing school basketball games—while on leave. In this particular case, the employee was taking FMLA leave to care for his daughter, who had a serious health condition.
Like it or not, winter is upon us as the calendar rolls into February, and Jack Frost is constantly lurking around the corner. In this space, we’ve talked about pay issues under the Fair Labor Standards Act (“FLSA”) when employees can’t make it to work or the business must close. On the flip side, however, some businesses, such as healthcare entities, provide critical services and often have no choice but to remain open to the best of their ability when winter strikes.