Thank you to everyone who has submitted posts during the past several weeks. Here are some of the latest opinions from the 4th Circuit and North Carolina appellate courts:
For employees with a disability, managing symptoms can be a continual struggle. Particularly in the area of mental health and other “unseen” conditions, many employees with a disability feel torn between disclosing their disability and asking for a reasonable accommodation, or keeping quiet out of fear that they will be subjected to judgment or retaliation from supervisors or colleagues. This dilemma is often compounded by a suspicion that the employer will be unwilling to provide a reasonable accommodation in the first place. In fact, the most recent available data from the EEOC shows that reasonable accommodation complaints have been on the rise in recent years. While between 2006 and 2008, EEOC Charges in North Carolina alleging failure to provide reasonable accommodation comprised 21.4 percent of EEOC Charges under the Americans with Disabilities Act (ADA), between the years 2012 and 2014, that figure trended upwards to 34 percent. However, while an employee with a disability may have a well-founded suspicion that their requests will be ignored, failure to communicate with the employer risks losing legal protections. This issue is of even greater concern where the activation of symptoms of an employee’s disability may appear to violate an employer’s personnel policies or code of conduct, such as in the case of Attention Deficit Hyperactivity Disorder (ADHD), or Tourette syndrome, to name a few.
In the final installment of our three-part series on ERISA’s new disability claim-processing procedures, we will wrap up our discussion by providing a run-down of the remaining changes to the regulations. Click here to read part one and here to read part two.
This is the first installment of our three-part series on ERISA’s new disability claim-processing procedures. Here we will focus on the background leading up to the implementation of the new regulations.
Not all days are created equal. Some just seem to soak up more glory than others. This year, for example, Dec. 10 is the First Sunday of Advent, the start of Hanukkah, International Day for the Abolition of Slavery, and Dewey Decimal System Day (if you’re under 30, we’ll wait while you look that last one up). Personally, we’re looking forward to National Talk Like a Pirate Day on Sept. 19.
But no day improved its stock more this year than April 1, making up for its past irrelevance with Easter, the second day of Passover, and, of course, April Fool’s Day. If that weren’t enough, it’s rent day too.
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.
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.
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.
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.