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Trends in Employment Law: Pop Culture Crosses Into the Workplace. Christie Newkirk Partner K&L Gates 1717 Main Street 301 Commerce St. Suite 2800 Suite 3000 Dallas, TX 75201 Fort Worth, TX 76102 214-939-5438 817-347-5274. Higher Standards in Workplace. Trend. Recent Impact.

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trends in employment law pop culture crosses into the workplace
Trends in Employment Law:Pop Culture Crosses Into the Workplace

Christie Newkirk

Partner

K&L Gates

1717 Main Street 301 Commerce St.

Suite 2800 Suite 3000

Dallas, TX 75201 Fort Worth, TX 76102

214-939-5438 817-347-5274

trend
Trend

Recent Impact

Action steps

higher standards
Higher Standards
  • Unwelcome sexual comments
  • No “real” investigation
  • Liability
    • Sexual harassment
    • Negligent investigation

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

higher standards1
Higher Standards
  • Multiple complaints / retaliation
  • Punitive damages
    • Knowledge of laws
    • Aware of duty not to retaliate

EEOC v. Stocks (5th Cir. 2007)

illness everywhere
Illness Everywhere

Have you watched theevening news lately?

leaves of absence
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)

leaves of absence1
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)

leaves of absence2
Leaves of Absence
  • Essential functions
  • Less favorable treatment
  • Individual liability

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

fmla amendments
FMLA Amendments
  • Effects of USERRA (12 mos. / 1250 hrs)
  • Qualifying exigency (12 weeks)
  • Care of a Service Member (26 weeks)
other fmla hot issues
Other FMLA Hot Issues
  • Disparate treatment at expiration of leave
  • Statement of consequences
  • Standardized letters
  • Maximum leave provision
  • Tentative designation
retaliation adverse action
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)

retaliation adverse action1
Retaliation- Adverse Action
  • Reprimands
    • Combative
    • Inappropriate comments
    • Unprofessional conduct
  • Not adverse action

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

retaliation adverse action2
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)

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

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

fmla retaliation
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)

intergenerational conflicts1
Intergenerational Conflicts
  • 5 generations
  • Demand for Gen Y exceeds supply
  • High maintenance / High performing
  • Work ethic v Work life balance
  • Loyalty
  • Praise
work life balance1
Work Life Balance

EEOC Guidance:

Family Responsibility Discrimination

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

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

mind reading1
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)

mind reading2
Mind Reading
  • Condition:
    • Hypertension / cardio vascular disease
    • Difficulty walking
  • Upheld verdict
    • ADA disabled
    • Failure to accommodate

EEOC v. DuPont (5th Cir. 2007)

confidential information
Confidential Information
  • Unilateral contract
  • Enforceable after employer accepts

Sheshunoff v. Johnson (Tex. 2006)

miscellaneous trends
Miscellaneous Trends
  • FLSA
    • Attorneys fees even with de minimus recovery
  • Gender identity discrimination
  • Same sex and other harassment cases
take away points
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