Employment Law This Week: Retaliation Claims, Waivers During Bargaining, Temporary Discharge, CT “Bans the Box”

Episode 35: Week of July 25, 2016

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This week’s stories include ...

(1) Seventh Circuit Revives Retaliation Claim

The U.S. Court of Appeals for the Seventh Circuit sets a low bar for Title VII retaliation claims. The Seventh Circuit partially reversed the dismissal of a university professor’s suit, finding that she had a “plausible” claim that she was denied tenure in retaliation for filing a charge with the Equal Employment Opportunity Commission. While her employers argued that the charge was filed after university officials had already made their decision on tenure, the Seventh Circuit said this was precisely the type of factual question that made the claim plausible and entitled the plaintiff’s lawsuit to survive a motion to dismiss. Christopher Farella, from Epstein Becker Green, has more on the challenges of getting a dismissal in a retaliation suit.

“The standard that a Title VII retaliation pleading has to meet is three things. One is that the plaintiff engaged in a protected activity, two, that there was an adverse employment action, and three, that there was a nexus between the protected activity and the adverse employment action. . . . Dismissals are very difficult to get in retaliation cases, because the analysis is very fact-sensitive, and the courts usually defer to juries for those facts. So, in cases where you have to weigh the evidence or assess somebody’s credibility, that’s in the province of a jury; it’s not for a judge to decide.”

(2) NLRB Requires Specific Waivers During Bargaining

Employers must have specific waivers to make unilateral policy changes when bargaining with a union. That’s according to the National Labor Relations Board (NLRB), which once again clarified its “clear and unmistakable” waiver standard to restrict employers’ midterm changes. In this case, an employer relied on a broad management rights clause in its contract with a union to make unilateral changes to specific policies. The NLRB found that the union had not waived its right to bargain over those changes because the contract did not refer to the policies with sufficient clarity. For more on this story, click here.

(3) NLRB Rules That Temporary Discharge Can Chill Concerted Activity

Termination can chill concerted activity even if the job loss is temporary, the NLRB rules. A manager for an Arizona paving company fired an employee who complained about management but hired him back shortly afterwards. The NLRB ruled that this temporary discharge violated federal labor law, noting that the action would be seen as a warning shot for employees who complain about working conditions or take action together. For more information, click here.

(4) Connecticut “Bans the Box” on Job Applications

The State of Connecticut joins eight other states in “banning the box.” The new legislation prevents employers from asking about an applicant’s criminal history on initial employment applications. Connecticut’s new legislation, which will take effect on January 1, does not go as far as some other “ban the box” laws that require an employer to wait for a criminal history check until after a conditional job offer is made. For more on Connecticut’s “ban the box” legislation, click here.

(5) Tip of the Week

Annette Guarisco Fildes, President and CEO of The ERISA Industry Committee, has some advice on state mandates for employee benefits.

“Paid sick leave, parental leave, state retirement programs, vaccine mandates, and other measures are being proposed almost daily by states and localities across the country. This really complicates matters for employers that want to offer uniform benefits to their employees across the country and adds to the already complex burden of complying with federal rules and regulations. . . . Take the time to review the new rules and weigh in with trade groups, lobbyists, and others who can shape the rules on your behalf to make it easier to comply and lower costs. When advocating for your organization, keep the best solutions in mind. This may mean going beyond state approaches to a federal one that would support uniform benefits nationwide. And finally, recognize that you are not alone. Other employers face these challenges as well, and trusted counsel can keep you informed and compliant.” For more information, click here.

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