1 Trends in Employment Law: Pop Culture Crosses Into the Workplace Christie Newkirk Partner K&L Gates 1717 Main Street301 Commerce St. Suite 2800Suite.

1

Trends in Employment Law:Pop Culture Crosses

Into the Workplace

Christie NewkirkPartner

K&L Gates

1717 Main Street 301 Commerce St.Suite 2800 Suite 3000Dallas, TX 75201 Fort Worth, TX 76102214-939-5438 817-347-5274

2

Higher Standards in Workplace

3

Trend

Recent Impact

Action steps

4

Higher Standards

Unwelcome sexual comments No “real” investigation Liability

Sexual harassment Negligent investigation

Waffle House v. Williams (Tex.App.—Fort Worth 2007, pet. filed)

5

Higher Standards

Multiple complaints / retaliation Punitive damages

Knowledge of laws Aware of duty not to retaliate

EEOC v. Stocks (5th Cir. 2007)

6

Illness Everywhere

Have you watched theevening news lately?

7

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)

8

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)

9

Leaves of Absence Essential functions Less favorable treatment Individual liability

Greenlee v. Christu (S.D. Tex. 2007)

10

FMLA Amendments

Effects of USERRA (12 mos. / 1250 hrs) Qualifying exigency (12 weeks) Care of a Service Member (26 weeks)

11

Other FMLA Hot Issues

Disparate treatment at expiration of leave Statement of consequences Standardized letters Maximum leave provision Tentative designation

12

Retaliation Claims

13

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)

14

Retaliation- Adverse Action

Reprimands Combative Inappropriate comments Unprofessional conduct

Not adverse action

Niu v. Revcor (Tex.App.—Fort Worth 2006)

15

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)

16

Retaliation

Kelly Services employee Don’t report any more to client Fired for insubordination

Block v. Kelly Services (5th Cir. 2006)

17

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)

18

Intergenerational Conflicts

19

Intergenerational Conflicts

5 generations Demand for Gen Y exceeds supply High maintenance / High performing Work ethic v Work life balance Loyalty Praise

20

Work Life Balance

21

Work Life Balance

EEOC Guidance:

Family Responsibility Discrimination

22

Employers Must be Mind Readers

23

Mind Reading Son “hurt badly” and “skinned up” Not reasonably connected to asthma

Greenwell v. State Farm (5th Cir. 2007)

24

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)

25

Mind Reading Condition:

Hypertension / cardio vascular disease Difficulty walking

Upheld verdict ADA disabled Failure to accommodate

EEOC v. DuPont (5th Cir. 2007)

26

Protection of Confidential Information

27

Confidential Information

Unilateral contract Enforceable after employer accepts

Sheshunoff v. Johnson (Tex. 2006)

28

Miscellaneous Trends

FLSA Attorneys fees even with de minimus recovery

Gender identity discrimination Same sex and other harassment cases

29

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

30

THE END