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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. Higher Standards in Workplace. Trend. Recent Impact.

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Trends in Employment Law: Pop Culture Crosses Into the Workplace

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  1. 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

  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

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