Employment Law Update

Michael Patrick O’Brien
March 26, 2008 | COMMENTS

 The United States Supreme Court has issued several decisions that will impact employers. First, regarding an age discrimination claim, the court has ruled that a charge questionnaire filed by an employee with a civil rights agency may be enough to actually be a filed charge. This decision poses the possibility that a wider range of documents filed with such agencies, short of formal charge documents, will have to be considered by the agencies, most of which now face charge backlogs. Second, in another age discrimination case, the Court has ruled that courts can allow, but must carefully consider whether to allow, so-called “me too” evidence, i.e. evidence of another employee who also has claimed that the employer is biased in a context unrelated to the pending lawsuit (e.g. involving other employees, other supervisors, and another department of the employer). Finally, the Court has expanded the type of lawsuit that can be filed regarding retirement benefits. The Court ruled that a 401(k) plan participant may sue to recover losses allegedly caused by a plan's failure to properly implement investment directions. The plaintiff in that case claimed that the plan's investors had not followed his directions on how to invest his 401(k) funds and thus should be liable for the related losses.

National Legislative Update

Congress is now considering the Civil Rights Act of 2008 (S. 2554/H.R. 2159), which among other things would do the following: (1) eliminate the present caps on damages that can be awarded against employers violating the discrimination laws; (2) make it more difficult for an employer sued for alleged equal pay violations to show that its actions were based on a legitimate factor other than sex; (3) limit the use of mandatory arbitration agreements only to those that are part of a collective bargaining agreement; (4) allowing prevailing plaintiffs in employment cases to recover reimbursement of expert witness fees; and (5) permit back pay awards to undocumented immigrants when their employer violates the employment laws.

Congress is also considering a bill (H.R. 1643) requiring employers to provide up to fourteen days per year of unpaid leave for first responders (police, firefighters, etc.) involved when disasters strike. National SHRM has testified asking Congress to clarify various aspects of the proposed legislation. Finally, SHRM is backing proposed legislation creating a new way for employers to check the work eligibility status of new hires. The New Employee Verification Act (H.R. 5515) would revamp the new hire registry system to allow its use in work eligibility verification in combination with unemployment compensation and Social Security databases.

Anti-Discrimination agency Accused of Discrimination

One state government entity is getting an up-close and personal look at the challenges posed by the laws it must enforce. Ironically, the Utah Antidiscrimination and Labor Division (UALD), the state agency charged with enforcing the state's employment discrimination laws, now has been accused of committing employment discrimination and retaliation itself. In a lawsuit filed recently in Utah federal court, a former UALD claims investigator says she was subjected to discrimination and sexual harassment along with other female employees. She also alleges the UALD retaliated against her by terminating her employment after she registered her complaints. According to the filed court complaint, the federal Equal Employment Opportunity Commission (EEOC) considered the matter and decided there was reasonable cause to believe that the UALD violated the law in its conduct towards the plaintiff. The case will now play out in federal court.

Employers Cannot Bar Pay for Unapproved Overtime

A federal appeals court in New York has ruled that employers must pay for overtime worked even if the employer did not approve it in advance. The case involved a nursing staffing agency's policy refusing to pay for overtime not approved by a supervisor. Although it must pay for the time worked, an employer remains free to have a policy requiring pre-approval of overtime and to discipline an employee for violating a rule that overtime must be approved in advance. Note that such discipline must be imposed consistently and in proportion to how similar offenses are handled in order to minimize the risk of a retaliation claim under the Fair Labor Standards Act (FLSA).

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.