Employment Law This Week®: Reliance on Salary History OK, Rescission of Resignation Case Ends, Photo Termination Case Proceeds, “Fairfax Memo,” Working Families Flexibility Act

Episode 71: Week of May 8, 2017

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!  Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) Reliance on Salary History Not Always an Equal Pay Violation

Our top story: Reliance on salary history is not always an Equal Pay Act violation, says the Ninth Circuit. A California federal court had granted summary judgment to a female employee of Fresno County, ruling that an employer could not defeat an Equal Pay Act claim by pointing to prior salary alone. The court reasoned that allowing such a defense would perpetuate discriminatory wage differences. The Ninth Circuit reversed, holding that salary history could be relied upon if it furthers a legitimate business policy and is used reasonably. The Ninth Circuit remanded the case, directing the lower court to review Fresno County’s policy based on this standard. Melissa Stannard, from Epstein Becker Green, has more on the possible impact of this ruling:

“It might cause these states to take a step back and look at whether a flat prohibition on the use of prior salary is the way to go or whether there are certain exceptions that can come into play. The other way that this can go, is this can actually go to the Supreme Court. And the Ninth Circuit specifically noted that there is a split right now, where some circuits are finding you can never, ever rely only on prior salary, and others are finding that you can rely on it; you just have to rely on it carefully. It's very possible that the Supreme Court picks this up and ultimately decides once and for all.”

Click here for more: http://www.ebglaw.com/eltw71-ret - and watch the extended version of the interview.

(2) Employer Refusal of Resignation Reversal Not Actionable

A California employer’s refusal to allow an at-will employee to rescind her resignation is not actionable, an appellate court rules. An employee claimed that she was in an altered state due to a temporary disability when she resigned from her position with a California medical group. The employee attempted to rescind the resignation, and the employer refused. The employee then sued, claiming that the refusal was disability discrimination. The appeals court upheld summary judgment for the employer. Among other findings, the court held that, because the employee was at-will and not constructively discharged, the employer’s refusal to accept the reversal was not an adverse employment action.

(3) Eleventh Circuit OKs FMLA Case on Facebook Photo Termination

Are Facebook photos cause for termination? In this case, maybe not. An employee took extended leave after shoulder surgery at his doctor’s recommendation. While on vacation during the leave, he posted Facebook photos of himself swimming in the ocean. Upon returning to work, he was terminated. The employee sued, claiming that he was fired in retaliation for taking an extended leave. The Eleventh Circuit held that the employer failed to show a non-retaliatory motive for the termination, in large part because the company gave inconsistent and contradictory reasons for its decision. Thus, the claim can proceed.

Click here for more: http://www.ebglaw.com/eltw71-heal

(4) OSHA Pulls Memo Allowing Union Reps to Join Inspections

OSHA has withdrawn its memo allowing union representatives to join inspections. In 2013, the agency released the so-called “Fairfax Memo,” which allowed union representatives to participate in OSHA safety inspections at non-union workplaces. The National Federation of Independent Business (NFIB) filed suit, claiming that the memo was inconsistent with both the Occupational Safety and Health Act and its accompanying regulations. In response to OSHA’s rescinding the Fairfax Memo, the NFIB has voluntarily withdrawn its lawsuit.

Click here for more: http://www.ebglaw.com/eltw71-mm

(5) House Passes Working Families Flexibility Act

Last week, the House of Representatives passed the Working Families Flexibility Act, which would allow employers to offer workers paid time off, instead of cash, for overtime hours. The bill will now move on to the Senate, where it’s expected to face significant hurdles. We’ll update you as this story develops.

Click here for more: http://www.ebglaw.com/eltw71-wh

(6) Tip of the Week

Monica Fiorentini, an HR consultant, has some advice on best HR practices for the future workforce.

“You may have noticed that millennials and Gen Xers are comprising more and more of today's workforce. There are certain HR strategies that we can implement to keep up with the demand of this evolving demographic in the workplace. It's really important for managers to have a one-on-one relationship with their employees so that they can best understand their priorities and their needs, and also really understand what makes that employee tick. So, I like to do regular informal frequent check-ins with my employees, like a walk and talk. Managers are probably going to notice that millennials and Gen Xers, they want to be more involved, they want to be more included in the decision-making process in the organization. And so it's great to accommodate this, but we have to be real mindful that we're also maintaining the hierarchy in the organization.”

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