Employment law is full of burden-shifting, prima facie standards and evidentiary hurdles. Sometimes, even the courts apply the wrong standard at the wrong stage of a case. That appears to be what happened in the case of Cicalese v. The University of Texas Medical Branch. “Go Back to Italy” A married couple emigrated from Italy to the United States and began working as doctors at the University of Texas Medical Branch (UTMB). According to the complaint,they were…

You finally settled that tough discrimination or harassment claim. Now you just need to ink the settlement agreement, and obviously it will include a standard non-disclosure clause to prevent your claimant from ever talking about the events or settlement amount ever again – right? Well, depending on the state you are in, not so fast. The #MeToo movement and attention on non-disclosure agreements in the wake of the President Trump-Stormy Daniels story, has led several…

Although it does not happen often, most employers have had to consider what to do when an employee says he or she cannot work a shift because of a religious belief. Under Title VII, an employer must offer a reasonable accommodation to address any conflict between an employee’s sincerely held religious belief and his or her work obligations (unless the accommodation incurs an undue hardship). A somewhat common scenario is an employee who cannot work…

Is discrimination against an employee because of sexual orientation or transgender status a violation of Title VII? The EEOC previously took the position that Title VII covers those statuses but the Trump administration has not followed suit. Accordingly, as of now, it may depend on where you live. In 2017 and 2018, the Second, Sixth, and Seventh Circuits ruled that adverse employment actions based on a person’s sexual orientation was sex discrimination under Title…

If an employee files an EEOC charge alleging discrimination and retaliation, never files a lawsuit on that charge, and several years later files another charge that he has suffered retaliation because he filed the first charge—can he still pursue claims from his first charge? In legal speak: Can a claim of alleged ongoing retaliatory behavior survive the EEOC exhaustion requirement when the underlying discrimination claims were time-barred because the plaintiff failed to file suit within…

An employee is on maternity leave and it does not look like she is going to be returning to work. Should you go ahead and terminate her employment during the maternity leave? Wait until it is over to terminate her employment? Require her to come in for an exit interview? Almost all of my clients have struggled with this scenario and held their breath hoping it would all work out for the best. Winn-Dixie recently…

Have you ever been audited by the Department of Labor? Most employers know that the DOL can perform a Fair Labor Standards Act audit to determine whether employees are being properly compensated for time worked. What employers may not know is that the DOL also has authority to conduct audits concerning compliance with the Family Medical Leave Act (FMLA). The DOL’s investigation consists of an examination of company records to determine which laws/exemptions apply, an…