Employment Law Update - Fall 2016

EEOC ISSUES NEW GUIDANCE ON RETALIATION

Since 2009, retaliation has been the most frequently filed charge of discrimination with the Equal Employment Opportunity Commission (EEOC). In fact, EEOC charge statistics show that almost half - 44.5% to be more exact -- of all charges filed in 2015 contained a claim of retaliation. Because of the rise in claims of retaliation and due to several significant court rulings on retaliation, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues on August 25, 2016. In releasing its Guidance, the EEOC noted that it sets forth the EEOC’s interpretation of the law on retaliation and that it would “be useful for employers, employees, and practitioners seeking detailed information about the EEOC’s position on retaliation issues.”

According to the Guidance, “[r]etaliation occurs when an employer takes a materially adverse action because an applicant or employee asserts rights protected by the EEO laws.” Generally, to engage in protected activity, an employee has to either participate in an EEO process (such as filing an internal complaint or EEOC charge of discrimination) or reasonably oppose conduct made unlawful by an EEO law (such as complaining to the employer about discrimination). According to both the EEOC and the U.S. Supreme Court, an employer engages in retaliation when it takes an action against an employee that “might deter a reasonable person from engaging in protected activity.”

In elaborating on this general framework of retaliation law, the EEOC Guidance discussed several important points that employers should keep in mind, including:

  •  An employer can retaliate against applicants and former employees, in addition to current employees. For example, an employer may engage in retaliation by refusing to hire an applicant because of a discrimination complaint against a former employer or by providing a false negative reference on a former employee who complained about discrimination.
  • To be protected, an applicant or employee does not have to complain about discrimination directed at them. An applicant or employee is protected if he/she reports or complains about discrimination against others.
  • An employer may be liable for unlawful retaliation if it takes action against a person close to the complaining employee (like a family member or close friend).
  • Although retaliation often takes the form of employment actions, such as refusal to hire, denial of job benefits, disciplinary action, or termination, the EEOC Guidance makes clear that other work-related conduct can constitute retaliation. For example, work-related warnings or reprimands, poor performance evaluations, transfers to undesirable positions, assignments of undesirable tasks, and harassing verbal or physical behavior can be retaliation.

Although the focus of the Guidance is unlawful retaliation, the EEOC also confirms that an employee is not shielded from his/her poor work performance or misconduct simply because he/she engaged in protected activity. Instead, employers may discipline or terminate employees for insufficient performance or misconduct, even when the employee has filed an EEO complaint, so long as the conduct is motivated by legitimate reasons, and not retaliatory reasons.

The EEOC’s Guidance can be obtained at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. In conjunction with the Guidance, the EEOC also issued a Fact Sheet highlighting the major points from the Guidance. A copy of the EEOC’s Fact Sheet can be obtained at https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm.

At Kaufman & Canoles, we are dedicated to keeping our clients informed of important legal changes like these. Join us at our 33rd Annual Employment Law Update on November 17, 2016 at the Virginia Beach Convention Center where this and other developments in employment law will be discussed by members of our Labor & Employment Team and EEOC representatives. To register or for more information, please visit us online at www.kaufCAN.com/events or contact Andrea King at (757) 624-3232.


FORMER DOL ENFORCEMENT COORDINATOR TO HIGHLIGHT K&C SEMINAR

On December 1, the salary requirement for the most commonly used overtime exemptions will double. Currently, workers earning $455 per work week or $23,660 per year are not entitled to overtime when they work over 40 hours in a work week if they also perform certain executive, professional or administrative duties. To be entitled to the exemption, the salary test will double to $913 per week or $47,476 per year. To help attendees deal with this dramatic change, the former Regional Enforcement Coordinator for the DOL Wage-Hour Division, Patricia A. Slate, will be featured as the luncheon speaker at the November 17th showing of the 33rd Annual Employment Law Update at the Virginia Beach Convention Center. Ms. Slate will also lead a workshop and will provide attendees with timely compliance tips for the DOL exemption salary threshold Rule effective December 1 of this year.

The 33rd Annual Update will also feature members of the K&C Employment Team and speakers from several key employment law agencies. The Director of the Norfolk office of the Equal Employment Opportunity Commission (EEOC), Norberto Rosa-Ramos will be on hand along with Senior EEOC Investigator Michael Johnson to provide attendees with the latest information regarding the new EEOC retaliation guidance as well as practical tips for employers who must now use the new EEOC digital charge filing system. 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 in the ever-popular K&C “Answer Booth.”

Seminar topics will include Effective Workplace Harassment Investigations, Hiring the Right People and ObamaCare/Other Benefits Under the New Administration. Not only will attendees earn 6 HRCI credits and/or 5 SHRM PDC’s, but one lucky attendee will win a $350 gift certificate. For more information or to register, visit www.kaufcan.com/events or contact Andrea King at 757-624-3232.


NO ADVANCE NOTICE REQUIRED TO TERMINATE AT-WILL EMPLOYEE

Most employers are aware that, under the at-will employment doctrine, either the employer or the employee may typically terminate the employment relationship at any time with or without cause unless there is an employment agreement stating otherwise. But Courts interpreting at-will employment in Virginia have added that “reasonable notice” of the intent to end the relationship is required. So, for years, employers in Virginia have been left to ponder, “What is reasonable notice?” The Virginia Supreme Court answered that question in its recent decision in the case of Brenda Johnson v. William E. Wood & Associates, Inc.

In that case, Ms. Johnson, an admittedly at-will employee, sued her employer for wrongful termination and breach of an implied term of her employment contract because her employer failed to provide advance notice of her termination. The Virginia Supreme Court rejected Ms. Johnson’s argument that advance notice is required to terminate employment. Instead, the Court held that “%u2018reasonable notice’ simply means effective notice that the employment relationship has ended.”

So, the Virginia Supreme Court has confirmed that employers in Virginia are not required to provide any advance notice before terminating employees. Instead, terminations can be made effective immediately, so long as employers are clear that the employment relationship is over. But, employers need to remember that this works both ways; employees are not required to give advance notice of their resignations either.


WHAT NOTICE IS REQUIRED TO RESIGN?

In the Johnson v. William E. Wood case discussed above, the Virginia Supreme Court confirmed that neither employers nor employees are required to give advance notice before ending the employment relationship. This still leaves some questions regarding what constitutes effective notice of resignation. In most cases, whether actual notice of resignation was given is not a problem; however, a recent case from Fairfax illustrates that this is not always as clear as employers would like.

In Harvey v. Virginia Employment Commission, Harvey, a bookkeeper with an accounting firm, left a signed resignation letter on her desk in an envelope addressed to her supervisor. Her supervisor found the letter on her desk one night, accepted her resignation, and terminated Harvey the next day. Harvey filed for unemployment benefits, but was disqualified from receiving benefits by the Virginia Employment Commission because it was determined she voluntarily resigned.

This case was then appealed to a Circuit Court in Fairfax, where the Judge focused on a single issue – did Harvey really give notice of her resignation? The Court determined that the employer could not presume resignation simply from finding the letter. Instead, the Court noted that Harvey had not mailed or hand-delivered the letter, had not left the letter on her supervisor’s desk, or discussed her resignation with her supervisor. Accordingly, the Court found that Harvey had not voluntarily resigned and that she was qualified for benefits.

This case points out that even though advance notice of termination is not required, both employers and employees need to be very clear when giving notice of their intent to end the relationship. And employers need to be sure to clarify any uncertainties when acting on employee resignations. Otherwise, the employee could qualify for unemployment benefits even though he/she appeared to have resigned voluntarily.


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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