Thorough investigations can protect employers from claims that their decisions were discriminatory, retaliatory, or in bad faith. Conversely, a defective investigation can increase an employers’ exposure to those same claims. Consider, for example, Viana v. FedEx Corporate Services, an unpublished Ninth Circuit opinion issued on March 22, 2018. The appellate panel in that case
9th Circuit Lets Employee Sue Employer’s Lawyer for Retaliation
There’s a saying that “Bad facts make bad law.” At least that’s the way I was taught it. A different version: “Hard cases make bad law” has its own Wikipedia entry. While the wording is different, the meaning is the same. When the facts are extreme, they serve as a poor basis for defining
Six Trends in U.S. Employment Law
I was recently invited to contribute a chapter on employment law to the 2017 Israel Desk International Legal Guide. As more and more Israeli companies bring their operations to the U.S., they learn firsthand the intricacies of our employment laws. The chapter outlines six trends that I suggested that they pay attention to. They include
10 Things That the EEOC’s New Retaliation Guidance Considers “Protected Activity”
The Equal Employment Opportunity Commission issued its new “Enforcement Guidance on Retaliation and Related Issues” on On August 25, 2016. Careful readers will be able to deduce from the section titled “Expansive Definition” that the EEOC uses an expansive definition of what constitutes protected activity. This activity is “protected” in the sense that
No Fooling: Stronger Anti-Harassment Regulations Take Effect in California on April 1st
With minimal public commentary, the Department of Fair Employment and Housing has passed new regulations broadening and strengthening the Fair Employment and Housing Act. While it’s too late to (officially) complain about them, here’s why you should care:
A) The new regulations significantly expand who is protected under FEHA.
First, the definition of “employer” is
Retaliation Remains the Most Popular EEOC Charge
The Equal Employment Opportunity Commission reports that, in fiscal year 2015, 44.5% of the charges it received alleged retaliation. That makes retaliation the most popular charge it received by a large margin. Previous statistics showed that retaliation claims were even more popular at the Department of Fair Employment and Housing – the EEOC’s California counterpart.
Can CA Employers Require A Doctor’s Note for Paid Sick Leave (Part 2)
Can California employers require employees who request paid sick leave to provide a note from their doctors? I addressed that question last May in response to a webinar put out by the California Department of Industrial Relations, the agency that enforces California’s Paid Sick Leave law. In that webinar, the DIR said that requiring
6 Ways to Avoid Retaliation Claims
I was recently reviewing the Department of Fair Employment and Housing’s Annual Report (don’t you wish you were me?), and saw that the DFEH received 17,632 complaints of employment discrimination in 2014. Of those, 12,344 (70%) alleged retaliation. Why is retaliation such a popular claim?
Some of it involves the way people perceive their interactions.
Should Your Settlement Agreements Have a No-Rehire Clause?
For years, employers settling with former employees have included a clause saying that the employee would never reapply and was not eligible for rehire. The rationale is obvious. After litigating, sometimes for years, no employer wants to bring the employee back and potentially start the process over.
However, there was never clear authority saying those
6 Things You Should Never Say When Investigating Harassment Claims
Harassment has been in the news a lot lately. How a company responds to an employee complaint is critical. If your company receives a complaint, here are some things you should never say:
- I will keep what you tell me completely confidential. No you won’t. You’ll keep it as confidential as circumstances allow. You’ll only