Employment Law
Questions about employment law issues answered by Haller & Colvin attorney Holly A. Brady.
From the Journal Gazette . . .Could Indiana become a right-to-work state?
Posted by: Abby Meares
February 22, 2011
The Indiana House is considering making Indiana the 23rd Right-to-Work state in the country. The Journal Gazette's Niki Kelly wrote about the bill in today's Journal Gazette. Read it here.
Supreme Court Changes Rules On Retaliation Suits
Posted by: Holly Brady
January 27, 2011
US SUPREME COURT RULES TO ALLOW CLAIM OF RETALIATION BY THIRD PARTY On January 24, 2011, the United States Supreme Court unanimously ruled that the fiancé of a woman who filed a sex discrimination complaint is protected by the anti-retaliation provisions of Title VII. The plaintiff, Thompson, and his fiancée both worked for North American Stainless, LP ("NAS"). Three weeks after NAS was notified that Thompson's fiancée had filed a complaint of sex discrimination, Thompson's employment was terminated. Thompson filed a complaint alleging a claim for retaliation in federal court. The trial court and the court of appeals dismissed the claim finding that the anti-retaliation provisions of Title VII do not extend to individuals other than those who actually complain of discrimination. The United States Supreme Court granted certiorari and reversed the lower courts' rulings. In the majority opinion written by Justice Scalia, the court found that the anti-retaliation protections of Title VII were intended to extend beyond the class of individuals who actually complain of discrimination. The Court reasoned that it was "obvious" that a reasonable worker might be dissuaded from engaging in protected activity by complaining of discrimination if the employee knew that her fiancé would be fired. The Court, therefore, held that Title VII's anti-retaliation protections were intended to extend to individuals like Thompson who are the alleged targets of retaliation. The Court declined to identify a fixed class of relationships which might warrant the protection of the anti-retaliation provisions noting that such a determination will depend upon the particular circumstances of each case. Extending the protections of the anti-retaliation provisions is a significant consideration for employers. Often times, defending a retaliation claim is more challenging than defending an employer on an underlying charge of discrimination. Retaliation claims captured the number one spot for EEOC complaints in 2009 representing 36 percent of all charges filed. In light of the Court's decision to further expand the class of individuals who have standing to bring such a claim, it is reasonable to expect the number of retaliation claims to continue to climb. Please be sure to consult with an employment lawyer before making employment decisions which might be construed as retaliatory. It is best to analyze the decision before it is made rather than working to defend a decision after it is made and the facts are established. Sound pre-termination employment advice is often your best defense. The contents of this blog post are intended for general information purposes only and should not be construed as legal advice.
Bar Association Labor and Employment Seminar
Posted by: Abby Meares
January 21, 2011
Holly A. Brady, the Chairperson for the Labor and Employment Section of the Allen County Bar Association, is scheduled to present a seminar to the Labor and Employment Section on March 23, 2011 on Social Media Risks Facing Employers. Brady and the panel will discuss actions an employer can take based upon an employee's Facebook postings and the associated risks.
Maternity Leave
Posted by: Holly Brady
January 20, 2011
Do I have to provide female employees with maternity leave after having a baby?
The short answer is, "No, the law does not require an employer to give ALL female employees maternity leave." However, as with most legal issues, the answer is not that simple and does not end there.
If you are subject to the FMLA and the employee otherwise qualifies based upon her months of service and number of hours worked over a 12 month period, you would be required to provide the employee with FMLA leave. If you are not subject to the FMLA or the employee does not qualify, you need to consult your employee handbook to determine how the Company treats other employees in a similar situation. It may be that while the FMLA does not apply and there is no particular provision in the Company handbook, the American with Disabilities Act may qualify the employee to a leave of absence as a reasonable accommodation. Finally, it is important to consider how you have treated male employees in the same situation to be certain that you are not exposing the Company to a claim of sex discrimination.
While the Pregnancy Discrimination Act and the American with Disabilities Act (ADA) protects employees from discrimination based upon their pregnancy, neither the PDA or the ADA "guarantee" an employee a leave of absence following the birth of the child. Of course, it is impossible to cover all factual and legal scenarios presented by this issue.
Pleasecontact our office to discuss and analyze the particular facts or your case to determine if leave is required by any of the applicable laws.
The contents of this blog post are intended for general information purposes only and should not be construed as legal advice.
