Employment Law Update - Fall 2017

COURT UPHOLDS EMPLOYEE DISCHARGE FOR FALSE HARASSMENT REPORT

Generally, employers need to be very careful when disciplining employees who have reported illegal workplace harassment. This is because the federal laws that prohibit workplace discrimination also prohibit retaliation against employees for reporting such conduct. But the Court of Appeals for the Fourth Circuit the federal court that governs application of employment law in Virginia, Maryland, North and South Carolina, and West Virginia recently ruled in Patricia Villa v. CavaMezze Grill, LLC that if an employer determines in good faith that the report is false employees may be discharged for such reports.

In the Villa case, the plaintiff, Patricia Villa, worked as a low level manager for the defendant restaurant reporting to the defendants General Manager. While she was employed as a manager, Ms. Villa called the companys Director of Operations to report that a former line level employee, who Ms. Villa had supervised, told her that the General Manager had offered her a raise in exchange for sex. The Director of Operations then interviewed witnesses, including the former employee who informed him that there was no such inappropriate offer and that she had not told Ms. Villa that it happened. After completing his investigation, the Director of Operations determined that Ms. Villas claim was false. Since the company concluded that Ms. Villa had made up the story, Ms. Villa was discharged for making a false harassment report.

Ms. Villa then filed a charge of discrimination for illegal retaliation and ultimately sued her employer in federal court insisting that she had accurately reported the comments of the former employee who complained about the companys Director of Operations. She even produced evidence that she had honestly reported what she had been told and her employer was mistaken in determining she had lied. But, since it was undisputed that the employee had denied such a report when questioned by her employer, the Federal District Court found that Ms. Villa had not engaged in protected activity and that her discharge did not violate the federal law prohibiting discrimination/retaliation based on sex. Ms. Villa then appealed that decision to the Fourth Circuit Court of Appeals.

In its decision affirming the District Courts decision, the appellate court recognized that the lower level employee in question may have given two different stories, but based upon what was reported to the employer, Ms. Villa made a false claim and accordingly did not engage in protected activity. The Court found that the employer acted in good faith after Ms. Villa reported an incident that was denied by the supposed victim and unsupported by other employees. The Court went on to say that if Ms. Villa was fired for misconduct she did not actually engage in, that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.

RENOWNED DIVERSITY TRAINER TO SPEAK AT K&C OFFICE PARTY SEMINAR

Mauricio Velasquez is a nationally-recognized diversity trainer who is President and CEO of The Diversity Training Group. Mauricio will be a featured speaker at the first showing of the 34th Annual Employment Law Update to be held on November 16, 2017 at the Virginia Beach Convention Center. In addition to providing valuable insights on diversity and inclusion in the workplace, Mauricio will provide attendees with guidance on how to deal with bullying and how to manage toxic employees and toxic workplace environments. When contacted for this article on what attendees should expect from him at the seminar, he stated that the topics he would be addressing dont go away by themselves, they fester! You must acknowledge they exist and address them or they will rise up and swamp the whole organization.

The 34th Annual Update will provide attendees with an educational and entertaining program with an Office Party theme. The K&C Employment Team and speakers from several key employment agencies will present a number of timely workshop topics. For example, the Deputy District Director/Charlotte for the Equal Employment Opportunity Commission, Tom Colclough, will help educate attendees on effective documentation to help reduce employment law risk. Also, a Supervisory Special Agent from the FBI will team with one of K&Cs lawyers, Nicole Harrell, to help attendees understand what steps should be taken to protect data and privacy on company computers and cell phones. As always, attendees will have the opportunity to have any and all employment law questions answered by these and other expert speakers throughout the day and the speakers will be available for more private consultation in the ever-popular K&C Answer Booth.

Other seminar topics will include Handling Unemployment Claims, Dealing with Problem Absenteeism, Handling Discipline and Discharge and 25 Employment Law Facts Every Employer Should Know. Not only will attendees earn six HRCI credits and/or five SHRM PDCs, but one lucky attendee will win his/her own Office Party at the areas hottest new party venue, Hilton Norfolk The Main. To register click here.

BEWARE: HACKERS ARE NOW TRYING TO ACCESS SMARTPHONES!

Hackers are getting more sophisticated in their attacks, opting to go straight for an employees smartphone rather than e-mail. Smishing attacks send a text message to a smartphone and ask you to click on a link. If you click on the link, you are asked to send an email for more information or confirm certain personal information. If you respond, your sensitive and personal information could be compromised. If smartphones are used for personal and work purposes, an employers information is also subject to compromise. Smishing attacks have been used for identity theft, bank account take-overs, and accessing confidential information.

In order to protect against these types of attacks, make sure you only click on links sent via text message from sources you know and trust. Do not click on links sent from unknown numbers. If a text appears to be from a legitimate institution, such as a bank, you should be able to call the institution directly to determine whether it actually sent the text message request. If it appears to be from a friend but the question or text message seems odd, call before your click. But, do not call the phone number which sent the suspicious text. Additionally, suspicious texts should be deleted.

Remember to advise employees they should think before they click or tap on any message.

TEXAS JUDGE STRIKES DOWN D.O.L. OVERTIME CHANGES

Last Fall, employers were struggling with how to comply with a proposed Department of Labor regulation roughly doubling the minimum salary for exempt status to $47,476 per year. The change was estimated to end the overtime exemption for approximately 4.2 million workers. The proposed regulation was opposed by more than 50 pro-business organizations and 21 states, all of which joined to challenge the new rule in court. The proposed December 1, 2016 effective date was set aside temporarily in a ruling by a federal court in Texas just eight days before it would have taken effect. On August 31 of this year, that same court issued a final ruling striking down the regulation and leaving the existing salary threshold of $23,660 per year in place.

The courts ruling recognized that DOL has the authority to establish regulations implementing the Fair Labor Standards Act, but held that the proposed regulation was not a proper exercise of that authority, in part because the increase was just too great. Given this ruling and a Trump administration that opposed the change, the salary level for exemption is not likely to change significantly in the foreseeable future.

MARK OF THE BEAST AT WORK

The use of biometric data is becoming more prevalent and integral to many employers operations and can increase security and accuracy. However, these new technologies are not without legal risks. Recently, Virginias federal Court of Appeals held in E.E.O.C. v. Consol. Energy, Inc. that an employer unlawfully discriminated against a coal miner who refused to submit to the employers hand scanner on religious grounds. In this case a hand scanner was used to track coal miners shifts. One employee, Mr. Butcher, claimed that using the biometric scanner conflicted with his Christian beliefs because it would impose the Mark of the Beast and could lead to his identification with the Antichrist. Instead of accommodating Mr. Butcher, the employer tried to dissuade Mr. Butcher from his beliefs, explaining that because the Mark of the Beast is associated only with the right hand or the forehead, use of the left hand in the scanner would be sufficient to obviate any religious concerns regarding the system. Mr. Butcher declined to accept the employers biblical interpretation and retired instead of violating his religious beliefs. Interestingly, the employer refused to give Mr. Butcher an accommodation even though it had already permitted employees with hand injuries, who were unable to use the scanner, to just enter their employee numbers on a keypad attached to the scanner.

Mr. Butcher won at trial and was awarded $586,860. On appeal, the federal Fourth Circuit Court of Appeals affirmed the jurys verdict, holding that it was not the Courts place nor the employers place to question the correctness of Mr. Butchers religious beliefs. Presented with the employers complete failure to accommodate Mr. Butchers sincere belief despite repeated requests, combined with the availability of a costless accommodation that the employer refused to provide to Mr. Butcher, the Court held that the jury had sufficient evidence to find that the employer unlawfully discriminated against Mr. Butcher.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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