FMLA Case Demonstrates that Employees Cannot Use Protected Leave as a Shield Against Warranted Discipline, Even Discharge

The intersection between an employer's obligations under the Family & Medical Leave Act (FMLA) and its enforcement of performance standards sometimes feels fraught with fear. However, nothing in the FMLA prohibits an employer from taking action against an employee for legitimate reasons, even when that employee is on or returns from a protected leave. Those were the issues before the Seventh Circuit Court of Appeals in Anderson v. Nations Lending Corporation decided on March 9, 2022. More ›

Eleventh Circuit Rejects Retaliation Claim Because HR Manager's Conduct was "Unreasonable" and Not Protected Under Title VII

In Gogel v. Kia Motors Mfg. of Ga., the Eleventh Circuit examined Title VII's opposition clause and the extent to which "oppositional conduct" can be considered so unreasonable that it loses Title VII protection. In this case, Kia fired its HR manager for strongly encouraging an employee to file a discrimination lawsuit against the company. Once terminated, the HR manager sued the company for retaliation, arguing that her actions were protected by Title VII's opposition clause. The court rejected the argument and the claim, handing a victory to employers. More ›

Employers Beware: Terminating an Employee with COVID-19 May Violate Several Federal Statutes

Throughout the COVID-19 pandemic, the issue of whether an employer may lawfully terminate an employee who has contracted COVID-19 has continued to arise. Terminating an employee because they have contracted COVID-19 carries significant legal risk. Some employers might consider the decision to terminate an employee a safety measure meant to protect employees and customers from coming into contact with someone who has had the illness. But doing so may run afoul of several federal statutes, including the Families First Coronavirus Response Act (FFCRA), as well as the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA). More ›

Why the ADA Can Make it Difficult for a Direct Supervisor to Discharge an Employee

It is often a challenge for employers to decide on who will deliver the bad news to an employee that their employment has ended. That decision may depend on who can connect with an employee and cause the least amount of personal and workplace turmoil.

Direct supervisors may rightfully claim they have special insight into certain workplace tensions and feel they are best positioned to steer clear of these tensions during a termination meeting with an employee. But in some instances, the law actually favors using Human Resources personnel or managers with less personal interaction with the employee. The Americans with Disabilities Act (ADA) is one such example, and employers should consider using management personnel who can credibly and demonstrably deny knowledge of personal observations or individualized data when ending an employment relationship with an employee considered "impaired" under the ADA. More ›

SCOTUS Aligns Application of Statute of Limitations in Constructive Discharge and Actual Discharge Cases

The U.S. Supreme Court held in Green v. Brennan that the statute of limitations for a constructive discharge begins to run on the date of resignation, not the date of the employer’s last discriminatory act, resolving a circuit split. As a result, in determining the deadline for filing a charge of discrimination with the EEOC, constructive discharge cases will be treated the same way as actual discharge cases. More ›

Legitimate Business Reasons Support Termination, Despite Employee's Recent Complaints of Discrimination

Employers often feel forced to walk on eggshells around employees who have made informal or formal complaints of discrimination, and often go so far as excusing otherwise inappropriate conduct for fear of a retaliation claim if any adverse action is taken. A recent case out of the Ninth Circuit provides some hope for employers in this regard. More ›

Court Incorrectly Denies Employee Opportunity to Present Comparator Evidence

A product engineer took an approved four-week leave of absence to visit family in Gaza, but upon return, security issues rendered it impossible for him to return to the United States prior to the end of his leave. His employer extended his leave for another 45 days. On the day he was scheduled to be terminated for failure to return to work, the employee sent an email to his supervisors advising that he was finally able to exit Israel and was trying to get a flight back to the United States.The employee returned to work roughly one week later and was informed that he had been terminated. More ›

Private Facebook Message not Concerted Activity Under NLRA

In this case, an employer terminated a medical office worker based upon a private Facebook message she sent to nine other current and former employees. The message contained derogatory comments about the employer but focused on one supervisor and another returning supervisor she disliked. The employee also expressed a desire to be terminated. No one copied on the message responded directly to the message content at issue. Another employee who received the message gave it to the employer. The employer terminated the author of the message on the grounds that it was obvious the employee no longer wished to work there and disliked the employer and, given these feelings, the employer was concerned about the employee’s interactions with patients.  More ›

EEOC Findings not Dispositive in Employee’s Discrimination Suit

Just because the EEOC finds that an employee was subjected to a retaliatory termination does not mean an automatic win in the courts. The plaintiff-employee in this case learned that the hard way. More ›