Category: Labor & Employment Law (page 1 of 7)

No Internal Complaints Under Dodd-Frank? Not So Fast.

By Andrew Henson

In Digital Realty Trust, Inc. v. Somers, 138 S.Ct. 767 (2018), a unanimous Supreme Court recently held that in order to be a whistleblower entitled to the anti-retaliation protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, an employee must have provided pertinent information to the SEC. Accordingly, the Court held that internal complaints to corporate management are insufficient to invoke Dodd-Frank’s Whistleblower anti-retaliation protections. The import of this decision has been somewhat dramatically characterized by various news outlets (see, “The Supreme Court Limits Whistleblower Protections Under Dodd-Frank,” and “Supreme Court declines to broaden whistleblower protections”), and while this decision may indeed have practical implications in the securities industry, it is important not to conflate this limitation on Dodd-Frank’s Whistleblower protections with the broader ambit of anti-retaliation protections afforded to employees under that 2010 law. Internal complaints remain an integral and expressly authorized form of protected activity under another prong of Dodd-Frank, and the Digital Realty Trust decision reaffirms that those protections continue to exist for covered employees.

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Can You Spare a Post or Two?

By Joseph S. Murray IV

You may have noticed that our postings have gotten sparser over the past couple of months—and I think it’s because the editors are tired. When we developed the blog, our hope was that section members would submit posts and we would edit those contributions, only stepping in to write when needed. Instead, other than the occasional guest post, we have had to write every week. This has finally taken its toll, and we need help.

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Recent Court Opinions

By Joseph S. Murray IV

The courts have been busy so far this year with employment law decisions. Here are some of the latest:

Digital Realty Trust, Inc. v. Somers, No. 16-1276 (U.S. Feb. 21, 2018): If you want whistleblower protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act, then you’d better blow your whistle at the Securities and Exchange Commission.

Balabed v. Eden Park Guest House, LLC, No. 17-1187 (4th Cir. Jan. 25, 2018): How much was Balabed’s bed worth? The 4th Circuit deep dives into the FLSA’s regulations on credit for lodging as wages.

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Supreme Court Decision in Digital Realty Trust, Inc. v. Somers Removes Protections for Whistleblowers, But Effects Are Limited

By Sean F. Herrmann and Kevin P. Murphy

On February 21, 2018, Justice Ginsburg sent shock waves through the employment bar—specifically those practicing whistleblower law—with the Court’s decision in Digital Realty Trust, Inc. v. Somers, No. 16-1276 (February 21, 2018). This decision significantly limits whistleblower protections under the Dodd-Frank Act. However, it is not the proverbial slippery slope.

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Two New Published 4th Circuit Opinions

By Joseph S. Murray IV

The 4th Circuit has been active in employment cases during the past couple of weeks, issuing several published and unpublished opinions. The following are the two most recent published opinions: [1]

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Update on EEOC v. Mission Hospital

By Joseph S. Murray IV

In my last post, On Vaccinations, Religion and What Buddha Really Said, I briefly discussed the case of EEOC v. Mission Hospital. In that case, the EEOC alleged Mission violated Title VII when it required employees to request accommodations to the mandatory vaccination policy by Sept. 1, but allowed employees to obtain vaccinations until Dec. 1. The district court denied Mission’s motion for summary judgment, and the case was on the trial docket.

On Jan. 12, 2018, the EEOC announced it had settled the case with Mission. Mission Hospital Agrees to Pay $89,000 To Settle EEOC Religious Discrimination Lawsuit (Jan. 12, 2018). In addition to the $89,000 Mission paid to settle the claim, it also had to agree to “revise its immunization policy to permit employees to request an exemption during the same period in which flu vaccines are to be received.”

On Vaccinations, Religion and What Buddha Really Said

By Joseph S. Murray IV

As flu season begins, so begin the arguments over accommodations for hospital employees whose religious (or sincerely held nontheistic) beliefs prohibit them from taking the flu vaccine. Two recent court decisions should help medical providers and employees better understand the Title VII requirements for religious accommodations and its definition of religion.

Here in North Carolina, the EEOC sued Mission Hospital after Mission terminated three employees who failed to timely request religious accommodations under Mission Hospital’s mandatory vaccination policy. The vaccination policy required accommodation requests to be submitted by Sept. 1 but employees did not have to be vaccinated until Dec. 1. EEOC v. Mission Hosp., Inc., 2017 U.S. Dist. LEXIS 124183, *6 (W.D.N.C. Aug. 17, 2017). Further, Mission gave a grace period for vaccinations but not for requesting an accommodation. Id. at *9. The court denied Mission’s summary judgment motion since it found that a jury could find that Mission violated Title VII by treating individuals seeking religious accommodations differently based on the staggered deadlines and inconsistently applied grace period.[1]

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Recent Fourth Circuit Decisions

By Sean F. Herrmann

The 4th U.S. District Court of Appeals has been relatively quiet as of late, at least with respect to employment law, but there are two fairly recent decisions worth flagging. On Nov. 28, 2017, in a published decision, the Fourth Circuit affirmed the Western District’s grant of summary judgment in Penley v. McDowell County Board of Ed., No. 16-2034 ( Penley, the plaintiff below, was a teacher at McDowell County High School (“MHS”). After Penley allegedly made an inappropriate comment to his students, MHS suspended him in April 2013. MHS investigated the allegation and recommended that Penley be dismissed. Penley, in turn, brought action against MHS’ principal, superintendent, and board of education, alleging that MHS’ decisions were in retaliation for Penley’s political speech, which was his participation in political campaigns. Judge Cogburn found no credible evidence connecting Penley’s participation in political campaigns to his termination and granted summary judgment. Circuit Judges Wilkinson, Duncan, and Thacker affirmed the decision.

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Gov. Cooper’s Executive Order On LGBTQ Employment Rights: An Effective Mandate For State Agencies and Contractors Or a Toothless Tiger?

By Logan H. Shipman

On Oct. 18, 2017, Gov. Roy Cooper signed Executive Order No. 24, and he tweeted that North Carolina was taking “another step forward” in making North Carolina a more “welcoming place to all.”  The EO prohibits discrimination, harassment, or retaliation on the basis of any of the following protected classes:

race, color, ethnicity, national origin, age, disability, sex, pregnancy, religion, National Guard or veteran status, sexual orientation, and gender identity or expression.

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Managing Misclassification: What You Should Know About the Employee Fair Classification Act

By Rachel Hairr

The Employee Fair Classification Act (EFCA), adopted by the North Carolina General Assembly in August, goes into effect on December 31, 2017. Here’s what employers and employees need to know.

The EFCA’s Purpose

The EFCA was enacted to address the practice of misclassifying employees as “independent contractors,” an issue which gained state-wide, and later national, attention in 2014. By classifying workers as independent contractors, employers can avoid paying state and federal payroll taxes, unemployment taxes, and providing worker’s compensation insurance, which would be legally required if the worker were classified as an employee. The practice of misclassification is particularly rampant in such industries as the construction industry.

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