Tuesday, January 30, 2018
Is employee copying of documents protected activity or unlawful stealing?
It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.
Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.
But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?
Does an employee have a right to copy your documents to prepare a discrimination lawsuit?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, November 27, 2017
Timing is everything when defending a retaliation claim
Miriam Valle worked as a ticket agent for Frank Martz Coach Company, until it fired her on January 27, 2016.
Two weeks prior, she had advised her immediate supervisor, Edward Steltz, that she needed to apply for FMLA leave for breast cancer surgery. Martz approved the leave to begin on January 19, and was scheduled to return to work on January 25 following her surgery. Complications pushed that return dated back by four days. Before she could return, however, Martz fired her following an investigation into complaints by co-workers that she had made violent threats (allegations which Valle denied).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, August 28, 2017
Letter to employees during EEOC investigation may violate discrimination laws
- Allow the EEOC process to proceed; or
- Inform your employees of the nature of the charge, the EEOC investigation, that the EEOC may contact them, and that their participation would be 100 percent voluntary?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, August 24, 2017
The 16th nominee for the “worst employer of 2017” is … the rapid retaliator
The EEOC has sued an Atlanta cemetery company for firing an employee the day after the agency interviewed her as part of an on-going investigation.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 28, 2017
More on why holding lawyers liable for retaliation to a client's employee is the worst idea
Yesterday’s post discussing Arias v. Raimondo as the worst employment-law decision of 2017 was way more controversial than I imagined. To me, it’s a no-brainer. It’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client. It will chill an attorney’s ability to give proper advice to one’s client, because anything that remotely could result in an employee suffering an adverse action could, under the logic of Arias, give rise to a retaliation claim. Then the comments rolled in:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, June 27, 2017
Is this the worst employment law decision of 2017?
I’ll be vacationing in California with my family the first two week of July. After reading the 9th Circuit’s decision in Arias v. Raimondo—holding an employer’s attorney for liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime—I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat out bonkers.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, May 4, 2017
6th Circuit says you can’t spell “cat’s paw” without F-M-L-A
It’s been six year since the Supreme Court decided, in Staub v. Proctor Hosp., which validated the “cat’s paw” as a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 1, 2017
Wait, an employer can’t fire an employee on FMLA leave caught on Facebook on vacation?
Actual firing Facebook photo |
So, what do you do?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 10, 2017
Promotion after protected activity dooms employees retaliation claim
What does unlawful retaliation not look like? Burton v. Board of Regents of Univ. of Wisc. Sys. (7th Cir. 3/17/17) offers a good example.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 4, 2017
The adverse action standard for retaliation is low (but not this low)
The legal standard for an “adverse action” to support a claim for workplace retaliation is pretty low. How low? According to the Supreme Court, an adverse action sufficient to support a claim for retaliation is any action that would dissuade a reasonable worker from complaining about discrimination.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, January 26, 2017
The 2nd nominee for the “worst employer of 2017” is … the recorded retaliator
Our next nominee for the Worst Employer of 2017 comes from my very own backyard—Cleveland Hopkins International Airport.
Here in Northeast Ohio take our snow removal very seriously, especially (we hope) at the airport, where an icy or snow-covered runway could cause disaster. In 2015, airfield manager Abdul Malik-Al complained to his bosses about his belief that the airport did not sufficiently support its winter-weather crews. Those comments led to the FAA levying a $200,000 fine against the airport.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 18, 2017
OSHA suggests employer best practices for anti-retaliation programs
The Occupational Safety and Health Administration has published recommended best practices to protect from retaliation employees who report workplace safety or other concerns under any of the 22 statutes OSHA enforces.
The document, entitled, Recommended Practices for Anti-Retaliation Programs [pdf], outlines five key elements of an effective anti-retaliation program:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, December 15, 2016
When a self-fondling supervisor earns the nickname “Mr. Bojangles,” it’s not going to end well
The EEOC reports that it has sued Goodwill Industries of the East Bay Area for sexual harassment and disability discrimination, following allegations made by disabled female nightshift janitors against their supervisor. The allegations are … disturbing:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 14, 2016
When it’s better to be lucky than good
Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, August 30, 2016
What employers can learn from EEOC's new Enforcement Guidance on Retaliation
Yesterday, the EEOC published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue. After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, July 25, 2016
Ohio Supreme Court sides with workers’ comp fraud
Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.
Not so fast.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, July 5, 2016
Employment at-will is dead
Last week, I suggested that the “FMLA is not a personnel-file eraser.”
One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.
http://dilbert.com/strip/2015-09-08 |
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 30, 2016
FMLA does not excuse poor performance
Earlier in the week, I discussed Tilley v. Kalamazoo, in which an employer took one on the chin for disciplining an employee for not doing his job while on an FMLA leave. That case, however, does not mean that the FMLA excuses prior poor job performance, or that an employer must ignore or excuse an employee’s performance deficiencies once an employee takes FMLA leave. Indeed, as Checa v. Drexel University [pdf] points out, it’s just the opposite.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 13, 2016
6th Circuit says illegal retaliation doesn’t meet threshold for constructive discharge. Wait, what?!
Henry v. Abbott Laboratories (6/10/16) [pdf] is what I would call a curious case, and one that I plan to liberally use any time I’m defending a case in which claims both of discrimination/retaliation and constructive discharge are asserted.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 14, 2016
Video killed the lawsuit star
If a picture tells a thousand words, then how many does a video tell?
Last week, the 6th Circuit affirmed the dismissal of a retaliation claim based on a video of an altercation that the plaintiff claimed she had not started.For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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