Employment Law This Week: Whistleblower Protection, Breast-Feeding Collective Action, Marijuana Use, Pattern-or-Practice Claims

(1) Whistleblower Case Withdrawn from High Court Review

Our top story this week: There is no clarity ahead over what constitutes a whistleblower. Marketing firm Neo@Ogilvy has decided not to appeal a case to the U.S. Supreme Court that would have tested the definition of a “whistleblower” under the Dodd-Frank Wall Street Reform and Consumer Protection Act. At issue is whether an employee can be eligible for anti-retaliation protection under the Dodd-Frank Act even if he or she does not provide information of corporate wrongdoing directly to the SEC. The U.S. Court of Appeals for the Fifth Circuit says “no,” but the Second Circuit disagrees. We asked John Fullerton from Epstein Becker Green to discuss how employers should navigate this uncertain road, now that the Supreme Court won’t be weighing in. Click here for more on the Second Circuit's decision and see bonus footage from our interview with Mr. Fullerton.

(2) TD Bank Must Face Breast-Feeding Collective Action

Nursing mothers can unite in a TD Bank breast-feeding collective action, a U.S. District Court judge says. The judge declined to dismiss a collective action alleging that the bank violated the Affordable Care Act (ACA) breast-feeding provisions of the Fair Labor Standards Act (FLSA). The named plaintiff claimed that the bank did not allow her, or similarly situated breast-feeding mothers, to take breaks to express milk during the workday. TD Bank argued that the employee’s circumstances were unique to her. The judge disagreed, and the case will move forward. Plaintiffs can get FLSA collective actions certified much more easily than class actions, and this case appears to be the first such action involving the ACA breast-feeding provisions.

(3) Marijuana in the Workplace

New marijuana regulations clash with employment laws. New Jersey recently held a hearing on the legalization of recreational marijuana, while a Florida Senator introduced a bill that would bring medical marijuana to Florida this year. Laws in 23 states and the District of Columbia now allow the use of marijuana in some capacity, and each state handles employment protections differently. In Coats v. Dish Network, the Colorado Supreme Court ruled that an employee could be fired for legally using marijuana while off duty. But this ruling would most likely not be the case in a state like Arizona, which grants express protections to medical marijuana users. This is an issue ripe for future litigation—we’ll continue to provide updates as the issue evolves. Click here for more information.

(4) Pattern-or-Practice Claims Allowed Under the ADEA

The U.S. Equal Employment Opportunity Commission (EEOC) has gotten the green light for pattern-or-practice claims under the Age Discrimination in Employment Act (ADEA). A U.S. District Court judge recently ruled that the EEOC’s allegations against the Darden Restaurants chain Seasons 52 "are sufficient to support a plausible pattern-or-practice claim of age discrimination." Darden had argued that the claim was not applicable due to the U.S. Supreme Court’s 2009 ruling in Gross v. FBL Financial Services, which held that the ADEA requires employees to prove age was the "but for" cause of an employment issue. This new ruling confirms that the burden shifting in a pattern-or-practice claim is not precluded by Gross and gives the EEOC another weapon to use in its systemic enforcement initiative. Click here for more on this ruling.

(5) In-House Counsel Tip of the Week

Kirsten Hotchkiss, in-house employment counsel for American Express Global Business Travel, advises us to keep in mind what she likes to call the "sympathy factor."