Breaking News: US Supreme Court Rules in Favor of Applicant in Abercrombie “Hijab” Case

The much-awaited ruling in the Abercrombie & Fitch “hijab case” is here. Abercrombie & Fitch refused to hire 17-year old Samantha Elauf, because the headscarf she wore pursuant to Muslim practices (which she was wearing at her job interview) conflicted with Abercrombie’s “look” policy, which prohibited pretty much any head coverings. (Click here for a review.) The US District Court (i.e. the “trial court”) agreed with the EEOC that Ms. Elauf had a legitimate religious discrimination claim. The 10th Circuit Court of Appeals reversed, ruling that an employer cannot be liable for failure to accommodate a religious practice when an applicant does not provide actual knowledge of the need for the accommodation. The US Supreme Court in an 8-1 decision, reversed the 10th Circuit’s ruling. Join The EmpLAWyerologist after the jump to find out why…

Breaking News: Employers Can’t Treat Pregnancy Worse Than Other Temporarily Disabling Conditions

Today the US Supreme Court handed down its decision in UPS v Young, known to many as “The Pregnancy Discrimination Act Case”. For a review of the facts, click here.   While the ruling is essentially favorable to Ms. Young and those who advocate for pregnant workers’ rights, it is not exactly a slam-dunk. Unless the parties settle, the case will not be over for some time. Join The EmpLAWyerologist after the jump to learn (at least summarily) what the Supreme Court said and what it means…

Hearing Religious and Pregnancy Discrimination Cases “Appeals” to the Supreme Court

The United States Supreme Court began its October 2014 term two weeks ago. Many of you may be thinking, “That’s nice, but why do I need to know that? Should I care?”  If you are an employer, manager or H.R. practitioner,the answer is a resounding “yes”.  Why? The High Court has agreed to hear appeals of six employment law cases, at least some of which could have an impact on you and your company. This week, The Emplawyerologist will focus on two employment discrimination cases–after the jump, of course!

What??? Even Informal, Oral Complaints Can Support an Employee’s Retaliation Claim??!!

The subject of retaliation seems to be taking the world of employment law by storm. Why? We know that employer retaliation against employees protesting employer practices reasonably believed to be illegal is an unlawful employment practice. (Click here for review)  So what more do we need to know?  Workplace retaliation is kind of like an onion. You peel away the skin and you find another layer, and then another. This week’s layer:  What is “protected” activity for purposes of determining impermissible retaliation? Must the employee specifically tell his/her employer or a government body in writing that the activity in question is a Title VII/ADA/ADEA/FLSA or other type of violation? Is it enough for him/her to glare at the employer with disdain if s/he feels the employer made a discriminatory comment? The answer:  “No” and “No”. What then is “protected activity”?  Join us after the jump examine this layer!

Thou Shalt Not Retaliate Against Your Employee’s Spouse??? Sibling?? Child? —Friend????

Just when we think we are getting our heads around what employers can and cannot do, we encounter another twist. Last week The Emplawyerologist began its foray into the world of workplace retaliation. The rule seems straightforward enough. If an employee objects to, complains of, opposes or cooperates in investigations of or oppositions to unlawful behavior by an employer, the employer cannot take an adverse action against that employee or group of employees.  As with any area of the law, there are several twists. This week we are looking at who is a valid complainant for workplace retaliation purposes. Many of you may not see that as a twist. After all, employers cannot retaliate against employees opposing certain behavior, and so only those employees are appropriate claimants, right? Well, not necessarily. Join The Emplawyerologist after the jump to read more.J

Works-for-Hire and Invention Assignment Clauses in Employment Agreements: Are You Sure It’s Your Property?

This week we start exploring one last building block that employers should consider including in their employment agreements: invention assignment and works-for-hire clauses. What are they and why might you need them in your contract? The short answer is that even though you now know to have provisions guarding against disclosure and use of confidential information and/or trade secrets, what good do they do if you have not established that such information really is your (the employer’s) property in the first place. If you include well-written provisions addressing this issue, then you should be “good to go”. So, let’s getting going and learn what we can about this last building block!

Mandatory Employment Arbitration Clauses: Clearing the Hurdles, Part II

Welcome back! Let’s continue our discussion of clearing the hurdles to writing enforceable arbitration clauses in employment agreements. We have thus far established that under the FAA, arbitration clauses/agreements must provide employees an effective mechanism for asserting and maintaining any rights they would have under federal statutes. (Again, most if not all states have their own additional laws and requirements regarding mandatory employment arbitration clauses, so if you are an employer, you need to look at applicable laws in all states in which they have employees.) We now also know that the terms themselves must be fair to the employee, or they will be substantively unconscionable, and may be stricken down by a court. What are some of the other hurdles?

     Third Hurdle: The manner in which arbitration agreements or clauses are made must be fair to the employee. If the process by which an employer gets an employee to agree to arbitrate disputes is oppressive and unfair to the employee, then it is what we call procedurally unconscionable. Whereas, substantive unconscionability focuses on fairness of the terms themselves, procedural unconscionability focuses on the fairness of the process by which the employer secured the employee’s consent. What factors do courts examine to determine if an arbitration clause/agreement is procedurally unconscionable? Age, education, intelligence, business acumen, experience and relative bargaining power of the parties are some factors. Conspicuousness and comprehensibility of the language, presence or absence of meaningful choice are other factors a court considers. As you can see the analysis will be very fact sensitive.

Let’s look at some real-life court analyses of procedural unconscionability.