Monthly Archives: November 2012

A Friendly Office Party Reminder

As Christmas approaches and holiday parties are in full swing, remember one vital issue about the office party: the rules still apply.

One New York employer found that out the hard way, and is now facing a lawsuit from an employee who complained to management about sexual harassment during the 2008 and 2009 Christmas parties, and was then sexually harassed again by the same people at the 2010 party. The trial court said the employer could be on the hook for the harassment. 

So please remember, even though it may not be at the office, the same law still applies.

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Pregnancy Protection Heats Up

Although pregnancy occupies an odd middle ground in employment discrimination, the EEOC is trying to ramp up protections for pregnant workers. Currently, employers are only required to treat pregnant workers the same as they treat other employees with temporary injuries, such as a broken leg. They have no obligation to provide reasonable accommodations for pregnancy itself.

But the EEOC is starting to focus on several pregnancy-related issues: (1) making sure that pregnancy-related conditions, such as gestational diabetes, are deemed disabilities under the Americans with Disabilities Act, and (2) making sure employers treat pregnant employees the same as similarly situated non-pregnant employees when returning from short-term leave.

It’s important to note that the law has not changed, only that the EEOC will now be focusing on these issues more vigorously, so employers need to know the nuances.

Who Is a Supervisor?

That’s the big question the U.S. Supreme Court will soon answer. It recently heard oral argument on a Title VII case to resolve an unanswered issue: who, exactly, is a “supervisor”?

Title VII case law makes the employer responsible for harassment by a plaintiff’s “supervisors,” but there is no clear definition of who’s included in this category. The Supreme Court grappled over whether the power to hire or fire was required, or simple seniority or ability to exert some sort of control over other employees is enough.

But we’ll have to wait until the spring for an answer.

One Way to Lose

File this one under “people who should have known better.”

An employee who sued his company for discrimination had his claim dismissed and is now on the hook for paying the company’s attorneys’ fees. The employee, a computer expert by trade, first planned on suing his employer in 2009. After being told he had to retain all email and electronic files on his work computer, he “wiped” it and “took a sledgehammer to it”–literally smashing it.

After arguing he backed up “most” of the files, and the court ordered him to turn over his laptop for inspection, he ran a program called Evidence Eliminator the same afternoon. Not content with that, he ran another program designed to delete files.

Citing the egregious conduct, the court dismissed his claims entirely and ordered him to pay attorneys’ fees and sanctions.

Court Allows Individual Liability for Wrongful Discharge

The Virginia Supreme Court last week broke some new ground in answering a question from the Fourth Circuit Court of Appeals: can a manager or supervisor be personally liable for wrongful termination?

Typically, wrongful termination cases are very limited in scope, only allowing a claim where the firing violated a fundamental public policy. The decision didn’t change that.

However, the Virginia Supreme Court did say that individual managers or supervisors who participated in the wrongful termination may be liable in addition to the employer itself (usually the corporation or other entity). The opinion drew a rare dissent from three of the seven justices.

Falling With Grace

Although not new, severance pay for executives has piqued public interest lately. Critics argue that executives–often leaving under questionable circumstances–receive multi-million dollar payouts on the way out the door. Two recent departures help reaffirm that view.

Former Citigroup CEO Vikram Pandit is collecting just over $6.5 million on his way out. After abruptly resigning (or facing termination) and creating speculation about the pay he left on the table, a disclosure filed Friday afternoon revealed he would, in fact, take $6,653,333 with him as an “incentive award.” He will also continue to vest in company stock.

And Christopher Kubasik, who was about to become CEO of defense contractor Lockheed Martin, also quit after confirming a “close, personal” relationship with a subordinate employee. His haul: a $3.5 million “separation payment.”

Obama’s Next Four Years (In Employment Law)

With the unsurprising reelection of President Obama, what major shifts in employment law will we see? Here’s one guess, from the Proactive Employer:

  1. Paycheck Fairness Act, which puts the burden on employers to explain gender-based pay gaps, will be revitalized
  2. Federal contractors’ compensation practices will be scrutinized
  3. The government will press for more contractors to hire disabled workers
  4. The EEOC will continue its adverse-impact focus on items like criminal records, high-school graduation, and other various topics
  5. Wage and hour law will be vigorously enforced to support increased revenue via penalties

Obviously the National Labor Relations Board will also continue to play a larger role than it traditionally has, likely continuing its entry into areas it historically left alone.

The continued roll-out of the Patient Protection and Affordable Care Act will go on unabated, with many major changes becoming effective in 2014.