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Showing 31 posts in EEOC.

The EEOC Retaliates on Retaliation, and Employers are Caught in the Crossfire

NOTE: The EEOC guidance on retaliation can be found here:
https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

One of the hands-down most difficult positions an employer may find itself in is the time period immediately following an employee reporting discrimination. If the employee engages in some form of conduct that is protected by a nondiscrimination statute such as Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act, any adverse action taken by the employer against that employee may be scrutinized as sign of retaliation, which is prohibited by these laws. Thus, the reporting of potential discrimination or the filing of any claim with the Equal Employment Opportunities Commission (“EEOC”) and other investigators produces a chilling effect on the discipline or even termination of that employee, even for unrelated issues.  More >

EEOC Issues Fact Sheet on Transgender Restroom Access

On Monday, May 2nd, 2016, the EEOC issued a fact sheet entitled “Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.” The fact sheet comports with the agency’s stance that Title VII protects gender identity under the prohibitions on discrimination based on sex and serves as a reminder to employers that federal law – and the EEOC’s interpretation of it – trumps state law on this issue, despite recent attention-grabbing media headlines.  More >

Employers, Beware: New EEOC Proposed Rule Would Gather Data, but Not Context

Every year, employers with 100 or more employees are required by the Equal Employment Opportunities Commission (“EEOC”) to invite employment applicants to self-identify their gender, race, and ethnicity on an EEO-1 report. On February 1st, however, the EEOC published a Proposed Rule that requires these employers to also include pay data and hours worked for all employees. This new regulation will provide a fairly powerful tool to the EEOC, but it could also prove to be a nightmare for employers. More >

Complaining to the Boss? The Second Circuit Says That's Protected

In 2011, the U.S. Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corporation that oral complaints are protected by anti-relation provisions of the Fair Labor Standards Act (“FLSA”), but it did not address a vital question: must those complaints be “filed” with a government agency to receive protection against retaliation, or will simple oral complaints to an employer trigger such provisions?[1] The Second Circuit recently moved to fill that gap, ruling in Greathouse v. JHS Security, Inc. that merely “filing” an oral complaint with an employer is enough to trigger anti-retaliation provisions of the FLSA[2].

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ADA “Direct Threat” Defense Just Got a Little Easier

The rights and protections afforded to those with disabilities by the Americans with Disabilities Act (“ADA”) are not without limitations. Accommodations for disabled employees must be reasonable, and the employee must still be able to perform essential job functions with an accommodation. Additionally, the employee’s disability cannot pose a risk to her- or himself or others in the course of job functions if that risk cannot be eliminated or reduced by a reasonable accommodation. This is known as the “direct threat” defense – adverse employment or hiring actions taken against an employee or applicant were done so to mitigate a direct threat to the safety of the employee or others. More >

Vetting Employees via Social Media – Walking the Digital Tightrope

As Comedy Central is discovering with the new host of The Daily Show, Trevor Noah, failure to fully vet an employee’s social media activity can have unexpected consequences. At the same time, an employee’s social media profiles can yield information that may be harmful to employers in the hiring process. There are potential pitfalls to examining an applicant’s social media profiles both too closely and not closely enough, and the lines are difficult to discern. More >

EEOC Consent Decrees are its Most Powerful Enforcement Mechanisms

The vast majority of settlements between an employer and the Equal Employment Opportunity Commission (“EEOC”) take the form of a court-approved consent decree. This document is a public record designed to highlight and account for certain wrongs in a way that sidesteps an admission of guilt in favor of the implementation of remedial measures to prevent further unlawful practices. A consent decree includes certain action and reporting mandates that employers must follow, providing the EEOC with the most powerful enforcement tool in its arsenal.

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Sexual Harassment Mistakes Employers Make

Sexual harassment claims can quickly become a nightmare for employers, but so many aspects of the nightmare are caused in part by the employer’s own actions. The employer has opportunities to mitigate the damage in two key areas – the sexual harassment policy itself before the alleged harassment incident and the investigation that takes place afterword. This post will look at mistakes made in these two particular areas that can hurt employers and lead to potentially costly damages. More >

Employers – Don’t Be a Victim of Suspicious Timing

Where there’s smoke, there may be fire – at least, that appears to be a key takeaway from the Seventh Circuit case of Ledbetter v. Good Samaritan Ministries. The holding in this case is predicated on the notion that suspicious timing in an adverse employment action can give rise to a claim of retaliation under Title VII in absence of other solid evidence. More >

The Law of Mandatory Flu Shot Requirements

The issue of whether United States citizens could be compelled to submit to vaccinations has been the subject of litigation since small pox was an epidemic threatening the health and well-being of the country in the early 1900s. In Jacobson v. Massachusetts, citizens challenged a Massachusetts state law requiring all persons over the age of 21 to be vaccinated against small pox. 197 U.S. 11 (1905). They argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” Id. at 26. The United States Supreme Court disagreed, finding “a real and substantial relation to the protection of the public health and safety” and noting that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 31, 25. The Court did note, however, that this power should not be exercised in such a manner as to be arbitrary or beyond what is necessary for the safety of the public. Id. at 26. More >

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