Evan Pontz

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The EEOC just sued J.C. Penney claiming that it refused to hire a woman at a Brunswick, Georgia store because she was pregnant.  While that is not big news (except to perhaps the woman and the management at that J.C. Penney location), the lawsuit offers some good lessons.

Why?  Well, the case involves two interesting set of accusations. 

REMINDER:  All employers covered under the Family and Medical Leave Act (”FMLA”) were mandated by the U.S. Department of Labor (DOL) to display the new FMLA poster by March 8, 2013.

Background:  Twenty years ago, President Bill Clinton signed the FMLA into law.  The law, requiring all employers with 50 or more employees to provide job-protected and unpaid leave for qualified medical and family reasons, ranks as one of the most insidious and complicated federal statutes for employers. Instead of using the FMLA’s 20th anniversary as a catalyst to provide FMLA clarifications, the DOL instead, issued additional federal regulations that implement statutory changes ensuring the FMLA will continue to be one of the biggest compliance headaches for covered employers.

Our firm’s latest “Advisory” just went out this afternoon explaining the D.C. Circuit Court of Appeals‘ ruling from last Friday that President Obama’s “recess” appointments to the National Labor Relations Board were unconstitutional, and therefore the Board was without the required quorum to act in a case from last year in which it found a soda-bottling company had committed an unfair labor practice.

This case involves a fascinating legal issue of the interpretation of the U.S. Constitution and the separation of powers between the Legislative and Executive branches (at least for those who find such things fascinating).  This decision is also good news for a particular soda-bottling company that challenged the NLRB’s decision.

When you are conducting a workplace investigation, do you instruct employees interviewed not to discuss the investigation with other employees?  You probably do.  It protects the fairness, integrity and truth-gathering function of the investigation.  It allows you to do the best possible investigation.

Did you know, however, that giving that instruction to employees — to not discuss the investigation with co-workers — may be illegal?  The National Labor Relations Board (NLRB) recently said it is.  Read on for their explanation and what you can do about it.

Does any employee believe that interrupting a meeting of company executives and mooning them would not get you fired?  Well, we found one who does, and he even went to court over his belief.  His story is a good reminder about handling awful behavior and terminating employees the right way.

As reported yesterday, Jason Selch worked for an asset management company that, through some mergers, became a subsidiary of Bank of America.  He was upset with his proposed compensation after the merger.  He got even angrier when a co-worker he liked was fired after refusing to accept a lower compensation plan.  So, Selch decided to protest in his own, special way — he burst into a meeting of executives and, after confirming he was not subject to a non-compete, he mooned the executives and left.

I love the Little League World Series.  Classic Americana.  Teams from all over the U.S. and the world play, and proud parents watch them.

Billie Ann Tomei’s son Cole and his team from California (which was coached by her husband Trevor) were good enough to play in the Little League World Series.  But when Billie Ann, an office manager for a CPA, asked for time off to travel to see Cole play, her boss said “No.”  According to Billie Ann, he told her, “If you go, write yourself your last [pay]check.”

Well, Billie Ann wrote herself that check and went to see her son play.  Do you think she regrets her decision?

The number of retaliation claims filed with the EEOC has been steadily rising.  Is there more retaliation in the working world?  More likely some of the rise is due to better knowledge of various employment laws’ anti-retaliation provisions and greater enforcement of those provisions, including more lawyers bringing retaliation claims that end in sizable verdicts.

I spent a day earlier this week representing a client in an EEOC on-site investigation.  The investigator interviewed numerous company officials.  At the start of each interview, the investigator stated that the EEOC is a “neutral third-party.”

While the EEOC is supposed to be neutral, many actions and positions taken by the EEOC leave companies (and their counsel) shaking their heads over this assertion of neutrality.  While the particular investigator I dealt with this week was quite professional, personable and reasonable, most other experiences with the EEOC make it hard for her and her peers to be viewed as neutral by any employer.

For instance, just this week the EEOC tweeted the following:

Until recently, Georgia was one of the most difficult states in which to enforce a non-compete or other restrictive covenant agreement against employees who left their jobs, set up their own business or went to work for a competitor.  In 2009, the Georgia Legislature decide to change this by enacting legislation intended to clarify the law on non-compete agreements as well as other restrictive covenants (such as non-solicitation and non-disclosure provisions).

While the goal was clear, the legislation was not.  The law that was enacted (and the amendment to the Georgia Constitution that was needed to permit the new legislation) left confusion about when the new law would take effect.