Traps for the Unwary

Subscribe to Traps for the Unwary via RSS

In a recent “work from home” decision by the U.S. District Court for the Eastern District of Pennsylvania, the court denied Sneaker Villa, Inc.’s, (the employer) motion for summary judgment. Slayton v. Sneaker Villa, Inc. Why is that important? In employment discrimination lawsuits, an employer’s earliest opportunity to have a case dismissed without the cost and risk of a jury trial is with a summary judgment motion. If the motion is denied, the case is headed for trial. The risks go up, the costs go up and, typically, so do the plaintiff’s settlement demands. In this case, the court decided that the question of whether the employer should have allowed work from home as a reasonable accommodation should be decided by a jury. The case is a reminder that an employer can jump too quickly to the conclusion that a request for a work from home assignment cannot be accommodated.

What happened?

The employee, Ms. Slayton, suffered fractured vertebrae and head trauma in a bus accident. After approximately two months of short-term disability leave, Ms. Slaton asked to return to her job as a corporate recruiter with the accommodation of working from home for four weeks, or until her physical therapy was completed. The employer denied the request to work from home and said that Ms. Slayton’s job would have to be filled because of the critical recruiting period that the employer was about to enter.
Continue Reading Work from home case shows importance of job descriptions and interactive dialogue

Never underestimate the power of a pro se litigant. That’s one lesson to take away from the Seventh Circuit’s en banc opinion in Hively v. Ivy Tech Community College, which is the first appellate decision to hold that Title VII bars employment discrimination on the basis of a person’s sexual orientation. Because Ivy Tech has stated that it does not plan to seek Supreme Court review (despite a Circuit split on the issue), employers subject to Title VII, particularly in Illinois, Wisconsin and Indiana, should know about this opinion and consider how and whether it may apply to them.

Surprisingly, this momentous decision resulted not from a national impact-litigation strategy but rather from the humble efforts of one pro se litigant. Math teacher Kimberly Hively filed a form complaint in federal court that alleged she was denied full-time teaching positions and promotions based on her sexual orientation, and sought damages based on Title VII and 42 U.S.C. § 1981. Ivy Tech Community College moved to dismiss and the Northern District of Indiana granted the motion. Undeterred, Ms. Hively retained advocacy group Lambda Legal to prosecute an appeal. Although she initially lost in a now-vacated opinion filed by a Seventh Circuit panel, Ms. Hively successfully sought reconsideration by the en banc Seventh Circuit with the support of amici EEOC and five Members of Congress, among others. The full Court voted 8-3 in favor of Ms. Hively and issued four opinions.Continue Reading Pro se litigant sets off Title VII avalanche: Seventh Circuit holds that Title VII prohibits sexual orientation discrimination

In November 2016, a Boeing employee experiencing difficulty formatting an Excel spreadsheet. Not realizing that hidden columns included birth dates and social security numbers for 36,000 Boeing employees, he emailed the spreadsheet to his wife, who was not a Boeing employee, so she could help. This seemingly innocent act prompted Boeing to launch an investigation …

Right-to-work laws limit the “union security” a union can achieve in a collective bargaining agreement with an employer. In states with no right-to-work law, unions can bargain for contract provisions requiring that, as a condition of continued employment, employees must either join the union or at least pay monthly fees to the union for its collective bargaining efforts. In states that have right-to-work laws, that sort of union security provision is illegal. There are 26 states with right-to-work laws currently. Ohio does not have a right-to-work law.
Continue Reading The door may be open for county or municipal government “right-to-work” laws in Ohio

A special thanks to Adam Bennett for his assistance with this article.

Election Day is quickly approaching. Rejoice! There really is a light at the end of the tunnel when the endless stream of attack ads will cease to exist. But before the last ballot is cast, the last precinct closes and the final votes are tallied, employers are sure to have plenty of questions about how to address employees’ political expression in the workplace without violating the law or making any employee feel alienated. To avoid being left with post-election blues, Ohio employers are wise to consider how they might comply with federal laws regulating political expression in the workplace and Ohio laws regarding voting leave.
Continue Reading Above the fray: The employer’s how-to guide on navigating the election season

In 2011, the U.S. Supreme Court in Staub v. Proctor Hospital first endorsed the “Cat’s Paw” theory of liability in a USERRA case. Derived from an Aesop Fable, the Court held that an employee termination based on information from a supervisor with discriminatory or retaliatory intent can provide the basis for employer liability even if the biased supervisor did not participate in the adverse employment decision. Following up on this decision, federal courts began applying the theory to Title VII and other federal discrimination laws. Last week’s 2nd Circuit decision in Vasquez v. Empress Ambulance Service, Inc., took the “Cat’s Paw” theory one step further when it upheld an employer’s liability under Title VII when the adverse employment decision was influenced by the retaliatory intent of a low level co-worker who had no supervisory responsibilities.
Continue Reading 2nd Circuit “Cat’s Paw” decision highlights importance of employer investigations before termination

As we outlined more fully in our earlier post, Ohio’s new medical marijuana law takes effect next month. Employers should be reminded that business groups lobbied for an exception allowing employers with drug-free workplace policies to take adverse action against applicants and employees for medical marijuana use.
Continue Reading Employers advised to review drug free workplace policy if they intend to prohibit medical marijuana use

The Northern District of Ohio recently refused to grant a Temporary Restraining Order (TRO) or Preliminary Injunction against an employee for allegedly violating a non-compete because the court said the agreement was written in the disjunctive. Alloy Bellows & Precision Welding Inc., v. Cole, Case no. 1:15CV494 (N.D. Ohio, April 22, 2016).

The claim was brought by Ohio corporation Alloy Bellows that manufactures “bellows assemblies,” which are highly specialized components of machines used in aerospace, heavy equipment, medical, nuclear, petrochemical, power generation (gas turbine) and semiconductors. Its former business development manager, Defendant Jason Cole, took a job with one of Alloy Bellows’ top competitor, Senior Flexonics. It was undisputed that his position with Senior Flexonics was “virtually identical” to the one he had with Alloy Bellows.
Continue Reading The word “or” might render your non-compete worthless

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus…

What an interesting and challenging time to be a human resources professional. There are the day-to-day challenges such as dealing with management needs, trying to support employee morale, keeping an eye on policy enforcement, legal compliance and workplace investigations. The list goes on. The U.S. Court of Appeals for the 2nd Circuit recently added one more challenge. The Court held that a human resources professional can be held personally liable for her company’s FMLA violations.

The Culinary Institute of America questioned the validity of an employee’s medical support for FMLA time off. In the ensuing communication between company and employee, the company’s director of human resources maintained that the employee’s documentation was not sufficient. The company eventually established a deadline for submitting proper documentation and when the employee did not respond, terminated her for job abandonment.  The employee sued the company and the Director of Human Resources for alleged FMLA and Americans with Disabilities Act (ADA) violations.
Continue Reading Director of human resources may be personally liable for FMLA violations