Wyatt Employment Law Report


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Seventh Circuit Rejects Claim of Sexual Orientation Discrimination

By Jordan M. White

rainbow flagJust last year, the Equal Employment Opportunity Commission (“EEOC”) ruled that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act.  On July 28, 2016, the U.S. Court of Appeals for the Seventh Circuit rejected the EEOC’s determination and ruled that Title VII does not protect employees from workplace discrimination on the basis of sexual orientation.  In Hively v. Ivy Tech Community College, Kimberly Hively, a part-time adjunct professor, claimed that she was denied full-time employment and promotions because she was a lesbian.  Hively began her teaching career at Ivy Tech in 2000.  Between 2009 and 2014, she applied for six full-time positions. She alleged that the college never even interviewed her for any of those positions, despite having the necessary qualifications and a record of positive work performance evaluations.

In December 2013, Hively filed a charge with the EEOC, alleging that she had been discriminated against on the basis of her sexual orientation and had been “blocked from full-time employment without just cause.”  Ivy Tech did not renew her part-time employment contract in July 2014 and she filed suit.  Ivy Tech successfully argued at Continue reading


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Are Your FLSA and EPPA Posters Up to Date?

By Courtney Ross Samford

The Department of Labor recently announced revisions to the Fair Labor Standards Act (FLSA) and Employee Polygraph Protection Act (EPPA) posters that must be posted in workplaces across the country.  The updated posters, which are available for download on the DOL’s website, must be posted by August 1, 2016.

All private, federal, state and local government employers employing at least one employee are subject to the requirements of the FLSA.  The EPPA applies to any employer engaged in or affecting commerce or in the production of goods for commerce, but excludes federal, state and local governments, and circumstances covered by the national defense and security exemption.


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Lack of Regular Sexual Harassment Training Could Deprive Employers of Defense to Claims Even if Employee Never Complained

By Sharon L. Gold

Have your employees recently been trained on sexual harassment?  Is your sexual harassment policy conspicuously posted?  Does your policy have a reasonable complaint mechanism?  If the answer is “no” to any of these questions, then you may be depriving your company of a defense to certain sexual harassment claims.

When an employer is sued by an employee alleging hostile work environment sexual harassment by a supervisor, the employer can defend against the claim if the employer can prove that: 1) the employer exercised reasonable care in preventing and correcting any sexual harassment; and 2) the employee unreasonably failed to take advantage of the preventative or corrective measures.  Taking its name after the two Supreme Court cases where the affirmative defense was created, the defense is called the Faragher/Ellerth defense.

In Pullen v. Caddo Parish School Board, —F.3d —, 2016 WL 3923867 (5th Cir. July 20, 2016), the Fifth Circuit recently held that the Faragher/Ellerth defense was not available because, among other reasons, the employer had not recently trained its employees on sexual harassment.  Continue reading


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A False Sense of Complacency – Fiduciary Liability Insurance: Don’t Forget the Nonrecourse Rider

By Rachel K. Mulloy

401K StatementMany employers that sponsor an employee benefit plan opt to obtain fiduciary liability insurance in addition to a fidelity bond, though ERISA only requires the latter.  Not to be confused with the fidelity bond, which insures a plan against loss due to fraud or dishonesty by people who handle plan funds or other property, fiduciary liability insurance protects plan fiduciaries against breaches of fiduciary duty.  Under ERISA a fiduciary can be held personally liable for plan losses that result from a breach of fiduciary duty, and the duties ERISA imposes on a plan fiduciary have been referred to as “the highest known to the law.”  Moreover, fiduciary liability coverage is often not included in D&O, E&O, or other liability policies an employer may purchase.  As such, it is generally advisable to obtain fiduciary liability insurance to protect plan fiduciaries against any breaches of fiduciary duty.

However, fiduciaries shouldn’t relax into the protection offered by fiduciary liability insurance without either (1) ensuring the coverage includes a nonrecourse rider that was purchased with non-plan assets, or (2) ensuring the fiduciary liability insurance was purchased with non-plan assets.  ERISA includes a prohibition against a Continue reading


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Lexington Has a New Mandatory Minimum Wage Rate…For Now

By Leila G. O’Carra

The Lexington-Fayette Urban County Government’s minimum wage ordinance went into effect earlier this month, increasing the minimum wage requirements for all employers within Lexington-Fayette County.  As of July 1, 2016, the minimum wage for Lexington is $8.20 per hour.  On the same date, Louisville’s minimum wage hit $8.25 pursuant to that city’s minimum wage ordinance, which first raised Louisville’s minimum wage to $7.75 as of July 1, 2015.  Kentucky’s state minimum wage requirement matches the federal minimum wage at $7.25 per hour.

Does a local government have the authority to invoke a minimum wage that is higher than Kentucky’s requirement?  This is one of the issues that Kentucky’s Supreme Court may soon decide in the case of Kentucky Restaurant Association, et al. v. Louisville/Jefferson County Metro Government, Case No. 2015-SC-371.  If the Court answers the question in the negative, the mandatory minimum wage rates in Lexington and Louisville will drop back down to $7.25 per hour.

 


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Persuader Rule Update

By George J. Miller

Judges HammerBy now, I assume most employers and others who keep up with developments in labor and employment law are familiar with the U.S. Department of Labor’s (DOL) controversial “persuader rule” that was set to take effect on July 1 of this year.  For those who are not familiar with it, here is a summary of what all the fuss is about, followed by some recent court developments.

In 1959, Congress amended the National Labor Relations Act (NLRA) by passing the Labor Management Reporting and Disclosure Act (LMRDA).  The main purpose of the LMRDA was to rid organized labor of corruption and also make it more democratic.  However, the LMRDA also requires labor consultants (including lawyers) to file reports with the DOL identifying their employer clients and the details of the terms of their engagement, including fees paid for their services, if an object of the engagement, either directly or indirectly, is to persuade employees whether or how to exercise or not to exercise their rights to organize or bargain collectively under the NLRA.  The law also requires employers who engage consultants for such purposes to file a similar report.  These filings are a public record.  Willful violations of the LMRDA’s reporting requirements are criminal and are punishable by a fine of up to $10,000 or a year in jail, or both.

However, the LMRDA contains an exception from the reporting requirement for consultants’ “advice” to employers in such matters.  Shortly after the LMRDA was enacted, the DOL issued guidance stating that if a labor consultant (including an attorney) did not communicate directly with employees regarding their Continue reading


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EEOC Boasts “Substantial Progress” of Systemic Program

By Courtney Ross Samford

Last week, the EEOC released a review of its efforts to combat systemic discrimination over the last decade.  The review, which comes on the 10th anniversary of its 2006 Systemic Task Force Report, boasts that the EEOC “has made substantial progress in building a systemic program that is strategic, nationwide, coordinated, and supported across the agency.”

According to Chair Jenny Yang, the “EEOC’s systemic program has opened up job opportunities for women in traditionally male industries, for African Americans and Latinos barred by background checks, workers with disabilities screened out by medical inquiries, and for older workers shut out by stereotyping” and “worked to remove discriminatory obstacles to equal opportunity and to institute promising practices in thousands of workplaces.”

The review notes that every district has initiated systemic investigations and lawsuits, and that investments in hiring and training have led to a 250 percent increase in systemic investigations over the last five years.  According to the EEOC, its systemic litigation program has Continue reading

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