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 1 Higher Standards in Workplace 2 Trend Recent Impact Action steps 3 Higher Standards Unwelcome sexual comments No “real” investigation Liability Sexual harassment Negligent investigation Waffle House v. Williams (Tex.App.—Fort Worth 2007, pet. filed) 4 Higher Standards Multiple complaints / retaliation Punitive damages Knowledge of laws Aware of duty not to retaliate EEOC v. Stocks (5th Cir. 2007) 5 Illness Everywhere Have you watched the evening news lately? 6 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) 7 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) 8 Leaves of Absence Essential functions Less favorable treatment Individual liability Greenlee v. Christu (S.D. Tex. 2007) 9 FMLA Amendments Effects of USERRA (12 mos. / 1250 hrs) Qualifying exigency (12 weeks) Care of a Service Member (26 weeks) 10 Other FMLA Hot Issues Disparate treatment at expiration of leave Statement of consequences Standardized letters Maximum leave provision Tentative designation 11 Retaliation Claims 12 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) 13 Retaliation- Adverse Action Reprimands Combative Inappropriate comments Unprofessional conduct Not adverse action Niu v. Revcor (Tex.App.—Fort Worth 2006) 14 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) 15 Retaliation Kelly Services employee Don’t report any more to client Fired for insubordination Block v. Kelly Services (5th Cir. 2006) 16 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) 17 Intergenerational Conflicts 18 Intergenerational Conflicts 5 generations Demand for Gen Y exceeds supply High maintenance / High performing Work ethic v Work life balance Loyalty Praise 19 Work Life Balance 20 Work Life Balance EEOC Guidance: Family Responsibility Discrimination 21 Employers Must be Mind Readers 22 Mind Reading Son “hurt badly” and “skinned up” Not reasonably connected to asthma Greenwell v. State Farm (5th Cir. 2007) 23 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) 24 Mind Reading Condition: Hypertension / cardio vascular disease Difficulty walking Upheld verdict ADA disabled Failure to accommodate EEOC v. DuPont (5th Cir. 2007) 25 Protection of Confidential Information 26 Confidential Information Unilateral contract Enforceable after employer accepts Sheshunoff v. Johnson (Tex. 2006) 27 Miscellaneous Trends FLSA Attorneys fees even with de minimus recovery Gender identity discrimination Same sex and other harassment cases 28 Take Away Points: Leave of absence policy Training “outside the box” FMLA mind reading “Other” forms of discrimination Handling complaints Personal liability: FLSA / FMLA Complaint procedure 29 THE END 30