Under the ADEA, an employee is required to file a “charge” with the U.S. Equal Employment Opportunity Commission (EEOC) before the dispute is escalated to court. But the term “charge” is not defined in the ADEA. Thus, the circuits have adopted various definitions, leading to extraordinary difficulty in determining when employees are entitled to file ADEA claims in court.
When Congress amended the Family and Medical Leave Act (FMLA) to grant additional leave entitlements to certain employees with family members in the military, its heart was in the right place. After all, who can argue against that type of leave?
Unfortunately for employers, Congress didn’t seem to think things through very carefully in drafting the legislation. First, by leaving out an effective date, it ensured that the legislation would — for the most part — be effective immediately. Then, by leaving a lot of the law’s specific requirements up to the U.S. Department of Labor (DOL) to interpret and even decide, Congress ensured that there would be a gap of at least several months between the law’s effective date and the DOL’s issuance of regulations.
“Me too” evidence is testimony by non-parties that alleges discrimination at the hands of persons who played no part in the challenged employment decision. In the present case, Ellen Mendelsohn, a 51-year-old unit manager with Sprint, alleged that the company fired her because of her age during a companywide reduction in force.
In a case that could have far-reaching consequences for employers and employees alike, the U.S. Supreme Court ruled on Wednesday, February 20, 2008, that the Employee Retirement Income Security Act (ERISA) allows an employee to sue his employer because of a fiduciary breach that resulted in individual losses to his 401(k) plan.
James LaRue says he told his employer to change his investment allocations from mutual funds to cash and didn’t find out for 10 months that it didn’t follow his instructions. LaRue says that when he repeated his request, the employer again failed to do so. The result, according to LaRue, was that his plan assets were depleted by $150,000. He sued his employer under ERISA in an attempt to recover his losses.
After many years of promising changes to the Family and Medical Leave Act (FMLA) regulations, the U.S. Department of Labor (DOL) last week issued new proposed regulations in an attempt to address some of the most common criticisms employers have about the previously issued final FMLA regulations. (You can view the proposed regulations at www.HRhero.com/fmla_update.pdf.)
(Updated Nov. 4, 2008 - Proposed changes to the Family and Medical Leave Act (FMLA) regulations were recently submitted to the Office of Management and Budget (OMB) for final review. The new regulations could be included in the Federal Register before the end of November.)
The recently enacted military family leave grants two new types of Family and Medical Leave Act (FMLA) leave to the relatives of military personnel. In short, the law requires employers to provide:
- 12 weeks of leave to employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces when they experience “any qualifying exigency,” and
- up to 26 weeks of leave to employees who are the spouse, parent, child, or next of kin of a servicemember who incurred a serious injury or illness on active duty in the Armed Forces.
In a 3-2 decision dated December 16 but released December 21, the NLRB majority ruled that the e-mail policy of Eugene, Oregon, newspaper The Register-Guard wasn’t a violation of the National Labor Relations Act (NLRA). The company’s written policy prohibited the use of e-mail for “non-job-related solicitations.” But in practice, it allowed a number of nonwork-related employee e-mails. There was no evidence, however, that it permitted e-mails urging support for groups or organizations.
by Peter Panken
On June 22, the U.S. Supreme Court decided an employment retaliation case in which it held that any action by an employer against an employee, applicant, or even a former employee constitutes unlawful retaliation if the action would deter a reasonable employee from filing a discrimination charge against an employer.
Retaliation cases now make up 30 percent of the Equal Employment Opportunity Commission’s docket and will increase substantially as a result of this decision. Moreover, employees now will want to get their cases before juries because they hope jurors will be so mad at the employer that they’ll award compensatory and punitive damages.
After several years of employees being required to meet a very high standard to have their cases heard by a jury, that may be changing in the long term. The U.S. Supreme Court recently cautioned federal judges to be careful in the rules of evidence and legal standards for employment discrimination. The Court’s opinion offers employers guidance on the amount of evidence needed to prove racial bias and pretextual reasons for decisions.
The case, Ash v. Tyson Foods, Inc., involved two African-American employees passed over for promotion in favor of two Caucasian employees. Part of their proof of racial bias was evidence that the manager who made the promotion decision had referred to them as “boy.” The Eleventh U.S. Circuit Court of Appeals rejected their argument, saying that use of the word “boy” by itself, with no racial adjectives modifying it, wasn’t evidence of discriminatory intent.