It’s been a terrific run. A real Cinderella story. Who would have thought that a little blog out of the northeast region could make so much noise in the thought leadership world?! We learned a lot along the way and we hope you did too. While we celebrate by cutting down the (inter)net (or better yet, by removing the keys from our keyboard), here’s a quick recap of where we’ve been:
This past week, the D.C. Circuit Court of Appeals issued an important decision addressing two on-the-bubble workplace confidentiality policies – one which made the cut, while the other one made its way over to the legal equivalent of the NIT. The decision explored the boundaries of workplace directives related to the discussion of salary and employee discipline information and non-disclosure in investigations.
As excitement builds for the March Madness Final Four on Saturday and the championship game next Monday, another exciting event is also rapidly approaching – Mintz Levin’s Third Annual Employment Law Summit. And just as South Carolina, Gonzaga, Oregon and North Carolina have so far refused to go quietly from the NCAA tournament, one of the topics we’ll be covering is how to handle employees who resist efforts to manage their performance and conform their behavior to professional norms. This panel discussion will feature three superb guests moderated by Mintz Member Dick Block and promises to be a spirited and engaging event.
Harassment has long been an Achilles’ heel of the workplace. Believe it or not, like the NCAA’s tournament TV ratings, the number of harassment-related lawsuits has held rather steady since the 1990s! And like most NCAA tournament games, the workplace can often be fast-paced and exhilarating, but it requires participants to play by the rules and when conduct goes out of bounds, participants must be benched or even ejected. In this regard, an employer must ensure that it has (1) the right players-personnel; and (2) systems in place not just for a successful season here and there, but for sustainable success over time that allows it to compete for the championship year after year. So what does this look like?
My colleague Alta Ray, was quoted in a Business Insurance article entitled, Injury Records Rule May Lead to More Citations in which she provides steps for employers to avoid retaliation against employees who report workplace injuries. The article examines the new anti-retaliation provisions to the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule and the challenges the provisions pose to employers.
The Fifth Circuit recently held that a third party witness who was fired after providing information in response to her employer’s investigation of a coworker’s harassment allegations had to demonstrate she had a “reasonable belief” that the conduct she reported violated Title VII in order to prove her retaliation claim.
Just last month, two federal district courts reached different conclusions, further contributing to the confusion as to whether notes taken during a Human Resources department investigation of a discrimination or harassment complaint are protected from disclosure in subsequent litigation. Continue Reading Are Your HR Investigation Notes Protected Against Disclosure? Maybe, Maybe Not.
My colleague Tyrone Thomas, was quoted in the Bloomberg BNA article entitled Managing Bias Risks While Increasing Workplace Diversity in which he analyzes the threat of reverse racism claims arising from employer diversity efforts. Thomas notes that diversity strategies should be tailored to the workplace and provides steps for employers to develop well-crafted diversity plans. The article outlines examples of reverse bias claims, methods to avoid these risks, and employers’ options in implementing diversity strategies.
In Howard v. Hertz Global Holdings, Inc., a Hawaiian Federal Court found that Hertz Rent-a-Car could not be held responsible for its employee’s Facebook comments about one of its customers. While employers should welcome the outcome, it did turn on the facts, and could have produced a different result under different circumstances. Employers therefore, should consider installing safeguards to ensure proper social media use by their employees.
The so-called “manager rule” addresses a concern that employers may face a “litigation minefield” if a manager whose very job duties required them to report discrimination complaints could later sue for retaliation if they were adversely affected by the making of that report. Employers argue that the manager is not really “opposing” a discriminatory practice sufficient to invoke Title VII’s anti-retaliation protections, when they are in essence just doing the job the employer assigned them. Last month, the Second Circuit (in Littlejohn v. City of New York) and Fourth Circuit (in DeMasters v. Carilion Clinic) addressed the “manager rule,” and while both courts rejected its application, the Second Circuit did adopt a somewhat employer-friendly variation. A brief discussion of these cases and their implications for the manager rule follows below.