Tag Archives: Retaliation

Telling An Employee They Are Eligible For FMLA Leave May Mean They Are Eligible… Even If They Aren’t

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leaves to employees who meet a set of eligibility standards.  These standards can be somewhat complex and, even though the FMLA has been around for over 20 years, employers still get make mistakes when determining eligibility.  The question then arises, what if your employer tells you that you are covered but then fires you when they later determine you are not actually eligible?  This exactly the scenario that arose in a recent federal appeals court decision.  See Tilley v. Kalamazoo County Road Commission, 777 F.3d 303 (6th Cir. 2015) (hat tip to the Employer Law Report for bringing this case to my attention).  Hit the jump for all the details… Continue reading

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Filed under Family Medical Leave Act, Rights, Uncategorized

Missouri Court Rules Discrimination Does Not Require A Specific, Discrete Adverse Employment Action

In Missouri, in order to make a claim for discriminatory harassment, the individual has to be able to show four things:

  1. The individual is a member of a protected class (race, color, religion, national origin, ancestry, sex, disability, or age);
  2. The individual suffered harassment related to their protected class;
  3. The harassment occurred because the individual belonged to the protected class; and
  4. A “term, condition, or privilege” of the individual’s employment was affected by the harassment.

The question faced in a recent Missouri appellate decision is whether the fourth requirement can be met even in a scenario where someone has not suffered from one specific act that caused economic harm. Fuchs v. Dept. of Revenue, WD77155 (Mo. App. W.D. Aug. 26, 2014).  Hit the jump for the details… Continue reading

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Filed under Discrimination, Missouri

Medical Information: What do I have to share with my employer?

When medical issues affect your work life it is natural to want to keep your health information as private as possible.  Often, employers will request that the individual sign an incredibly broad release that would grant them access to basically all of an individual’s health information which is far beyond what the law requires.  However, when deciding what information to share with your employer, bear in mind that there are some minimum standards of disclosure that must be met in order to claim protection under federal law.  This post will examine two cases, one under the Family Medical Leave Act and one under the Americans with Disabilities Act, where an individual shared information but the courts decided it wasn’t enough.  Fortunately, in most situations there is a balance that can be achieved between protecting your information and protecting your job. Continue reading

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Filed under Americans with Disabilities Act, Discrimination, Family Medical Leave Act, Uncategorized

Union Advocacy and Free Speech

I have written about the free speech rights of public employees a few times now but a recent case from a federal court in New York creates an important precedent for union members advocating on their coworkers’ behalf.  See Pekowsky v. Yonkers Bd. of Educ., No. 12 Civ. 4090 (S.D.N.Y. May 29, 2014).  Before getting into the details of Pekowsky, it’s important to understand the general landscape of public employee First Amendment rights.  The courts have taken several opportunities to limit general free speech rights in the somewhat unique scenario where the government is also an individual’s employer.  In order for a public employee’s speech to be protected under the First Amendment (and therefore protect them from any discipline for that speech), the speech must meet four tests:

  1. The employee must be speaking as a citizen and not pursuant to their official duties;
  2. The speech must be on a topic of public concern;
  3. The employee’s free speech interests must outweigh the employer’s interests; and
  4. The speech must be the motivating factor of an adverse employment action.

At issue in Pekowsky, was how these tests would apply to a union representative disciplined after advocating for his coworkers.  Hit the jump for more… Continue reading

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I’m on Medical Leave, Can I be Fired? Do I Have To Do Work?

The Family Medical Leave Act (FMLA) is one of the most important protections for workers dealing with their own medical issues or the health issues of a family member.  It provides time off for medical care or recuperation and guarantees that you cannot be disciplined or terminated for taking the leave (if you need to get acquainted with the basic protections of the FMLA, here is a video presentation I made with all the info).  Unfortunately, while the FMLA does protect you from termination for taking medical leave, there still may be other grounds that an individual can be terminated even while on leave.  Additionally, many employers now require some amount of call-in or work done while on leave, but the contours of what exactly can be required are fuzzy.  Hit the link for a few cases that illustrate these aspects of the FMLA… Continue reading

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Decision May Broaden Speech Protection for “Teaching and Writing on Academic Matters”

When I talk with educators they are routinely surprised by how limited their free speech rights are (for previous coverage of First Amendment issues, click here).  The courts have repeatedly narrowed the broad protection provided by the First Amendment so that now public employee speech must pass a number of tests before determining whether it is protected.  However, a recent decision out of the federal 9th Circuit Court of Appeals may be changing that trend.  See Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013).  Hit the jump for a discussion of the first few glimmers of change, along with a heavy helping of cautions… Continue reading

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U.S. Supreme Court Limits Employer Liability for Discrimination

In two cases over the summer, the U.S. Supreme Court clarified some important aspects of discrimination law. Unfortunately, in both cases they decided in favor of the employer, creating new limitations on when an employee can successfully sue for discrimination. These cases are guaranteed to have impacts for all employees so we will summarize them each below.  Hit the jump for all the details… Continue reading

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Discrimination Time Limits – Missouri’s Unique Requirement

When an individual in Missouri files a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC), the timelines are relatively straightforward: the complaint must be filed within 180 days of the last discriminatory event and then a lawsuit must be filed within 90 days of receiving the right-to-sue letter from the EEOC.  Unfortunately, Missouri law contains an extra caveat, one that almost brought a recent litigant’s claim to an early end.  See Plengemeier v. Thermadyne Indus. Inc., No. ED99193 (Mo. App. E.D. June 4, 2013).

Hit the jump for the Show-Me state quirk… Continue reading

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Sexual Harassment and 180 Day Limits

When talking with individuals concerned about potential discrimination in their workplace, I often find that they are surprised by just how short a time they have to file their claims.  In Missouri, employees only have 180 days from the date of the alleged discriminatory act to file a claim with the Equal Employment Opportunity Commission or the Missouri Human Rights Commission (or both!).  In some circumstances, where the alleged discrimination went on for years, the individual learns that they can’t challenge any of the potentially discriminatory behavior because the most recent incident occurred more than 180 days ago.  However, if there has been at least one incident in the last 180 days, the entire course of conduct can be actionable according to the “continuing violation” theory.  A recent case from the 3d Circuit Court of Appeals (DE, NJ, PA, Virgin Islands) analyzes just such a situation, and also provides some guidance on sexual harassment retaliation as a bonus.  See Mandel v. M&Q Packaging Corp., No. 11-3193 (3d Cir. Jan. 14, 2013).  Hat Tip to the Lawffice Space for pointing this case out.

For all the details and some timely advice, hit the jump…

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Employer burned by social media

Just in case you misread that title, we are talking about an employer who learned the hard way that social media doesn’t just ruin employees lives.  It has gotten to the point that I am no longer surprised when an employee is facing termination (or worse) for something they did on social media (and if you are a public employee who tweets, facebooks, or is reading this very post during work time PLEASE STOP NOW!), so its nice to see The Employer Handbook Blog link to a Fair Labor Standards Act case where the employer’s social media use got them in all kinds of trouble.

Read on for all the Coyote Ugly details… Continue reading

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