EEOC Claims Steady, Litigation Slows

The EEOC released claims and litigation data for its most recent year. The result: discriminations charges trended slightly lower, while litigation nose-dived.

The agency fielded nearly 100,000 complaints for retaliation and discrimination. The number was down slightly from 2011. However, the EEOC only filed 122 lawsuits during the same time, less than haf the 2011 figure. Its total recovery in litigation was also halved, bringing in only $44.2 million, compared with $91 million the year before.

NLRB Challenges Begin

After the D.C. Circuit Court of Appeals’ surprising ruling last week, several aggrieved employers have argued that NLRB decisions against them are invalid.

At least two employers cited the D.C. Circuit case this week in filings with other federal appeals courts. As it’s been over a year since the NLRB started issuing arguably invalid decisions, there is plenty of room for employers to argue that any NLRB action against them is void. Those decisions could include many of the recent issues addressing social media use by employees.

Concrete resolution will almost certainly come in some form, whether in an appeal or rehearing of the entire D.C. Circuit Court. Until then, however, the NLRB’s decisions will remain open to attack.

Obama NLRB Appointments Unconstitutional

In a surprisising opinion released Friday, the federal D.C. Circuit Court of Appeals ruled that three of President Obama’s appointments to the National Labor Relations Board violated the Constitution. The appeals court held that Obama made the recess appointments when Congress wasn’t actually in “recess.”

The ruling creates a potentially messy situation, effectively invalidating every decision the NLRB has reached since January 2012. It would also completely stop current NLRB business as it technically can’t act because it lacks three duly appointed members.

The government has vowed to appeal the case, which has far broader implications in recess appointments, to the U.S. Supreme Court.

Fired Teacher Sues Claiming Fear of Kids

In other Ohio news this week, a fired teacher has sued her former school district for violating the Americans with Disabilities Act based on her fear of children.

The teacher, who taught high-school Spanish and French, was transferred to a middle school after the school district revamped the curriculum. She claimed the transfer, and general presence of middle-school students, caused her anxiety and blood pressure to soar to dangerous levels because of her pedophobia, or fear of young children. She sought a transfer back to the high school, but ended up retiring.

Stay tuned for the outcome.

Veganism as Religion?

It’s possible, according to a federal court in Ohio.

A nurse in Ohio claimed her sincerely held belief in veganism justified her refusal of a flu vaccine her employer, a hospital, required of all employees. She was fired after refusing the vaccine, which contains animal by-product. The lawsuit claims her firing violated Title VII based on her religious beliefs.

The court refused to dismiss the lawsuit after the employer argued that veganism isn’t a religion. The judge said it’s possible as long as the conviction is sincerely held with the strength of religious views.

But it’s also important not to read too much into the ruling: the merits of case, including any evidence of a legitimate basis for the vaccine requirement, must still be presented at trial.

IRS Mileage Rate Rises in 2013

The IRS has slightly raised its reimbursement rate for mileage–including employees’ mileage in many instances.

The new rate is 56.5 cents per mile.

14-Year Sexual Harassment Case Ends

In what was surely a nightmare for everyone involved, the nation’s largest Burger King franchisee has settled a 14-year-long lawsuit brought by the EEOC alleging a pattern of sexual harassment throughout its 572 stores.

The case, which began in 1998, expanded to include 90,000 current and former employees. It then got reduced to about 500 employees, then to just under 100, all of which would require separate trials in federal court.

The franchisee will pay $2.5 million to settle the claims and provide additional training.

High-Tech Spying to Catch Employee Misconduct

A recent NPR article highlights a growing trend in employee surveillance: corporate investigators. Repurposing counterterrorism software, these high-tech investigators are now focusing their sights on corporate workplaces, using pattern and behavior analysis to track down insider trading, embezzlement, or other illicit conduct.

The techniques, which may track employees’ emails, phone calls, and other electronic activity, rely on the employees’ consent–often given in a handbook or disclaimer–confirming that the employer can monitor employees’ conduct. 

The hints can be subtle, too: a sudden switch from regular emails to a particular person to regular phone calls for a day or two, then back to email. 

While it’s probably out of reach for smaller employers, the growing trend in employee surveillance isn’t likely go disappear anytime soon.

Top 5 Posts for 2012

Thanks to each of you for continuing to make Virginia Employment & Benefits Law a success in 2012!

Here’s a recap of the 5 most viewed posts during 2012:

1. York Man Fired for Pulling Gun on Robber
2. New Fair Credit Reporting Act Form (odd choice, but hey)
3. Talking Politics at Work
4. A Friendly Office Party Reminder
5. Obama’s Next Four Years (in Employment Law)

As always, we’re looking forward to what 2013 brings our way.

Payroll Tax Cut Lapses for 2013

As part of the so-called “fiscal cliff” deal Congress hammered out this week, the 2% payroll-tax cut will lapse.

The tax cut, which was only temporary, reduced the employee share of Social Security withholding from 6.2% to 4.2%. Now that it has expired, the employee portion will switch back to 6.2%, meaning employees will take home a bit less in each paycheck than they’re used to.

Stalled Legislation May Reappear in 2013

Given the hectic pace at the end of this Congress’ term, it’s no wonder they left many tasks unresolved, including some pending employment-law legislation. Here are a few things to keep an eye on in 2013 (via Jackson Lewis):

• The Employment Non-Discrimination Act, which would ban employment discrimination on the basis of sexual orientation
• The Paycheck Fairness Act, which would place the burden on the employer to explain gender-based pay differentials
• The Healthy Families Act, which would mandate paid time off

Of course, the Patient Protection and Affordable Care Act’s details continue to trickle out, and the Supreme Court is expected to rule on the constitutionality of same-sex marriages, which would greatly impact employee benefits.

Stay tuned.