Trends in Employment Law:
Pop Culture Crosses
Into the Workplace
Christie Newkirk
Partner
K&L Gates
1717 Main Street
Suite 2800
Dallas, TX 75201
214-939-5438
301 Commerce St.
Suite 3000
Fort Worth, TX 76102
817-347-5274
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Higher Standards in
Workplace
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Trend
Recent Impact
Action steps
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Higher Standards
 Unwelcome sexual comments
 No “real” investigation
 Liability
 Sexual harassment
 Negligent investigation
Waffle House v. Williams (Tex.App.—Fort Worth 2007, pet. filed)
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Higher Standards
 Multiple complaints / retaliation
 Punitive damages
 Knowledge of laws
 Aware of duty not to retaliate
EEOC v. Stocks (5th Cir. 2007)
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Illness Everywhere
Have you watched the
evening news lately?
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Leaves of Absence
 Job related stress / depression
 Not disabled
 Loved job
 Job did not “stress her out”
Mackey v. Children’s Medical Center (N.D. Tex. 2006)
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Leaves of Absence
 No travel after FMLA leave
 Question: Equivalent position
 Answer: De Minimus change
Smith v. East Baton Rouge Parish Sch. Bd. (5th Cir. 2006)
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Leaves of Absence
 Essential functions
 Less favorable treatment
 Individual liability
Greenlee v. Christu (S.D. Tex. 2007)
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FMLA Amendments
 Effects of USERRA (12 mos. / 1250 hrs)
 Qualifying exigency (12 weeks)
 Care of a Service Member (26 weeks)
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Other FMLA Hot Issues
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Disparate treatment at expiration of leave
Statement of consequences
Standardized letters
Maximum leave provision
Tentative designation
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Retaliation Claims
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Retaliation- Adverse Action
 Adverse actions
 Reassignment
 Suspension without pay (reimbursed)
 Would is dissuade a reasonable employee from
making a claim?
Burlington Northern v. White (2006)
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Retaliation- Adverse Action
 Reprimands
 Combative
 Inappropriate comments
 Unprofessional conduct
 Not adverse action
Niu v. Revcor (Tex.App.—Fort Worth 2006)
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Retaliation – Adverse Action
 Actions:
 Relocation of desks
 Vague comments by unnamed employees
 Transfers (requested by Plaintiffs)
 Not adverse actions
McCullough v. Kirkum (5th Cir. 2006)
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Retaliation
 Kelly Services employee
 Don’t report any more to client
 Fired for insubordination
Block v. Kelly Services (5th Cir. 2006)
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FMLA Retaliation
 Fired afternoon on day gave notice
 Decision made 4 days prior
 Court: Lack of causal connection
Norton v. City of San Antonio (W.D. Tex. 2007)
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Intergenerational Conflicts
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Intergenerational Conflicts
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5 generations
Demand for Gen Y exceeds supply
High maintenance / High performing
Work ethic v Work life balance
Loyalty
Praise
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Work Life Balance
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Work Life Balance
EEOC Guidance:
Family Responsibility Discrimination
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Employers Must be Mind
Readers
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Mind Reading
 Son “hurt badly” and “skinned up”
 Not reasonably connected to asthma
Greenwell v. State Farm (5th Cir. 2007)
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Mind Reading
 Pregnant employee: Sick and can’t report to work
 No call / no show violation
 Insufficient notice for FMLA protection
Willis v. Coca Cola (5th Cir. 2006)
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Mind Reading
 Condition:
 Hypertension / cardio vascular disease
 Difficulty walking
 Upheld verdict
 ADA disabled
 Failure to accommodate
EEOC v. DuPont (5th Cir. 2007)
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Protection of Confidential
Information
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Confidential Information
 Unilateral contract
 Enforceable after employer accepts
Sheshunoff v. Johnson (Tex. 2006)
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Miscellaneous Trends
 FLSA
 Attorneys fees even with de minimus recovery
 Gender identity discrimination
 Same sex and other harassment cases
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Take Away Points:
 Leave of absence policy
 Training “outside the box”
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FMLA mind reading
“Other” forms of discrimination
Handling complaints
Personal liability: FLSA / FMLA
 Complaint procedure
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THE END
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