Troutman Pepper Locke's Labor + Employment Group

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HR professionals know that employment litigation can be expensive.  Very expensive.  One reason litigation has become so expensive, especially recently, is because companies use and store massive amounts of electronic data, including emails and computer files such as Microsoft Word and PowerPoint documents.  When a company is sued for an employment law violation, the plaintiff (in most cases, a former employee) is entitled to “see” all of those electronic files that may be relevant to the claims brought or the defenses relied on by the employer.  This process is commonly referred to as “e-discovery.”

Retailer Abercrombie & Fitch has been known to push the envelope at times. If you’ve seen their half-naked male models posing in store windows in only a pair of boxer briefs, then you know what I’m talking about. Nonetheless, it still may be surprising to learn that Abercrombie’s CEO only hires all-male flight attendants to work on his private jets and requires them to wear only polo shirts, jeans, boxer briefs, and flip flops as their uniform (unless it is less than 50 degrees outside, of course).

We previously posted about the United States Equal Employment Opportunity Commission (“EEOC”)’s new fact sheet, entitled “Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” and considered the fact sheet’s examples as to how an employer might violate Title VII’s prohibitions in discriminating against applicants or employees who experience domestic or dating violence, sexual assault, or stalking.

In this post we’re going to consider the ADA examples provided on the fact sheet, and our recommendations for how you can avoid discriminating against the victims of domestic violence in your workplace.

As HR professionals, we often think about how to prevent domestic violence from spilling over into workplace violence, through the use of workplace violence policies, domestic violence response teams, and “no guns in the workplace” policies.

You may not, however, have given much thought as to how to prevent discrimination and retaliation against victims of domestic violence who are employed by your company, or who have sought employment with your company.  This issue is crucially important to victims of domestic violence; when they lose their jobs, or fail to obtain employment, they lose the ability to be economically independent, and oftentimes then remain controlled by their abuser.  This issue is also critically important to employers, who may inadvertently subject themselves to liability if they are not aware of the federal, state, and local laws that protect the victims of domestic violence from discrimination and retaliation.

As the Department of Labor (DOL) reminds us, October is the month the Office of Disability Employment Policy encourages employers, employees, educators, unions, and other organizations to focus on disability awareness.  National Disability Employment Awareness Month is an awareness campaign that, among other things, provides employers with a reminder that the employment of individuals with disabilities requires Human Resources managers to (i) regularly check for legal updates, (ii) conduct policy reviews, (iii) implement thorough training of personnel, and (iv) consult with competent legal counsel to ensure all of the appropriate controls are in place to ensure compliance with a potentially tricky and elastic legal landscape.

Many employers are committed to promoting and maintaining a diverse workforce.  But why do employers value diversity?  Does diversity really affect a company’s balance sheet?  Or does diversity only have abstract value?

A brief that was recently filed with the U.S. Supreme Court argues that some employers seek diversity as a tool for increasing revenue and remaining competitive in global markets.

The Supreme Court recently held oral arguments in a case involving affirmative action policies in higher education.  The case involves a challenge to the admissions policy at the University of Texas — a policy which considers an applicant’s race as one of several relevant admissions criteria.

Name:  Richard E. “Rick” Sullivan
Title:  Principal
Company:  HR STAR Consulting

1.  How many years have you been working in HR?  35 + years

2.  Favorite thing about working in HR?  Problem Solving; Aligning the human resources with the business focus

3.  Best piece of advice you ever received about a career in HR?  Listen; Be Flexible

In several prior posts, we have highlighted the growth of retaliation actions, including retaliation under Title VII and the FMLA.  We have also provided suggestions for minimizing the likelihood of your company being found liable for retaliation.

There are many other statutes that also provide employees with protection from retaliation for bringing a claim.  In particular, the trend in recent years has been for statutes containing whistleblower provisions to couple those whistleblower provisions with retaliation provisions.  This provides employees with further confidence and assurance that it will be “worth it” for them to come forward—either to their employer or to the government—with information concerning a violation of the statute.

The California Legislature made headlines yesterday by passing legislation that prohibits employers from demanding the social media usernames or passwords of current employees and applicants.  The bill also prevents employers from requiring employees or candidates to log in to social media in the presence of the employer (i.e., the employee’s supervisor, or the interviewer, or a human resources manager – you get the point).

We are thrilled that you read our blog and hope that you are finding it informative, entertaining and beneficial to you and your work.  If you have comments, suggestions or ideas, please let us know.  We love feedback and we want to be sure the blog is what you, our readers, find most useful.

Of course, there are plenty of newsworthy stories on human resources and labor and employment law issues that we are not able to get to in our blog posts.  Here are some links to recent stories and articles that we have found interesting, and thought you might enjoy as well:

  • The National Labor Relations Board finds that Costco’s social media policy is overbroad, affirming guidance released by the Board’s acting general counsel, Lafe Solomon.  Inside Counsel