Management's Workplace Lawyers

April 2017 E-Update

April 28, 2017

2017 Maryland General Assembly Employment Legislation Update

During the Maryland General Assembly session that ended in April 2017, Shawe Rosenthal lawyers again worked with the Maryland Chamber of Commerce to oppose or moderate legislation that would adversely affect employers. Several employment-related bills were passed by the General Assembly. 

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Two More Federal Appellate Decisions on Sexual Orientation Discrimination Under Title VII, With Opposite Results

Following last month’s decisions by two different federal appellate courts that sexual orientation discrimination is not sex discrimination under Title VII, as discussed in our March 2017 E-Update, two other federal courts have now addressed this issue – one for the first time finding coverage under Title VII and the other reiterating a finding of no coverage.

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Profanity-Laced Facebook Message Is Protected Activity

Because an employee’s profane and vulgar Facebook message occurred in the context of union organizing activity, the U.S. Court of Appeals for the Second Circuit found that it was protected by the National Labor Relations Act, although it sat at the “outer-bounds” of such protected conduct. 

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NLRB's Revised Successor Bar Doctrine Upheld by Federal Appellate Court

The U.S. Court of Appeals for the First Circuit upheld the National Labor Relations Board’s 2011 revision to its successor bar doctrine, under which a successor employer is required to recognize the union’s bargaining relationship with the prior employer for some reasonable period of time. 

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Supreme Court Establishes Standard for Appellate Review of A District Court's Enforcement of EEOC Subpoena

A federal district court’s decision either to enforce or to quash a subpoena issued by the Equal Employment Opportunity Commission is reviewed by an appellate court under an abuse of discretion standard, according to the U.S. Supreme Court. 

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Federal Court Holds Poor Economy Does Not Justify Pay Disparity

The U.S. Court of Appeals for the Eighth Circuit held that the trial court properly instructed a jury that the employer could not rely on poor economic conditions as a justification for pay discrepancies between female and male employees. 

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Cat's Paw Theory of Liability Applies In FMLA Cases

The U.S. Court of Appeals for the Sixth Circuit held that an employer may be held liable for Family and Medical Leave Act violations based on the cat’s paw theory of liability, meaning that the illegal animus of a non-decisionmaker influences the actual, non-biased decisionmaker.

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President Trump Nullifies Amendments to OSHA's Recordkeeping Rule

President Trump signed a Congressional resolution of disapproval that nullifies the recent amendments issued by the Occupational Safety and Health Administration to its recordkeeping rule.

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Maryland Court of Appeals Addresses "Public Policy" Underlying Wrongful Discharge Claim.

The Maryland Court of Appeals (our highest State court) refused to recognize federal regulations prohibiting research misconduct as setting forth public policy that supports a wrongful termination claim.

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Maryland Federal Court Addresses Parameters of Employee Defamation Claims

The U.S. District Court for Maryland issued an opinion in Doe v. Johns Hopkins Health Syst. Corp. that reviewed the scope of defamation claims based on intra-company communications. 

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Revised Veterans' Hiring Benchmark for Government Contractors

The Office of Federal Contract Compliance Programs has announced an updated hiring benchmark for veterans of 6.7%, based on recently-released data from the Bureau of Labor Statistics. 

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TOP TIP: Investigatory Suspensions

When confronted with a situation involving possible employee misconduct, many employers place the employee in question on a suspension while it conducts an investigation. Employees sometimes challenge the suspension as being an adverse employment action on which they can base a claim of discrimination or retaliation under federal employment laws, and it may be helpful for employers to establish up front that it is not. 

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