Because I focus my practice on employment law and most of my clients are employees, I consult with dozens of people who have been treated horribly at work and many who have been fired.  The law in North Carolina is not favorable for employees so I have to give many people the bad news that they have no legal claim.  The majority listen to me and, while perhaps not happy with the information I give them, understand that there is no legal claim available to them.  However, there are people each week who get mad at me for giving them bad news. They may say nasty things to me during the consultations, send me nasty emails or even go on websites to give nasty reviews or make nasty comments.

Every now and then there is a person who truly appreciates the advice and counsel I have provided. Those people understand that the law in this state is the problem. And sometimes those people provide wonderful feedback like this that helps to make me feel my work for employees is worthwhile:

From: *******
To: *****@theangellawfirm.com
Sent: Wednesday, October 29, 2014 5:36 PM
Subject: Lesson Learned!

Good Afternoon Mr. Angel,

 

I just wanted to thank you for meeting with me this afternoon and being honest about this case and I'm elated!!! I guess you say, "I 'm just doing my job", well everyone is not as candid and honest as you were this afternoon.  I would rather hear the truth and move forward than waste money on charlatans and  frivolous claims and that was worth whatever I had to spend for your services. I wish I would have  gone to you first ,  well lesson learned.  Thanks again and feel free to post my comment on your blog!​

Supreme Court Invalidates Recent NLRB Social Media Cases

On June 26, 2014, the Supreme Court concluded that three of President Obama’s appointments to the National Labor Relations Board (NLRB) made in January 2012, without Senate confirmation, were unconstitutional. As a result, more than 700 decisions from the NLRB from January 4, 2012 through July 31, 2013 are now invalid. The NLRB must now reconsider many decisions that affect both union and non-union workers. The decisions include cases where the NLRB limited the rights of employers in the workplace. The most impactful decisions the NLRB can expect to reconsider are its cases focused on social media, and the employer’s limitation to regulate employees’ social media post.

In 2008, Anthony Booth and Jerry Brown filed charges against the County and the Union with the EEOC and the Florida Commission of Human Rights.  The charges stated issues with the County and Union’s response to past internal complaints.  In 2007, Booth named Brown as a witness in a grievance he filed against the supervisor of station 14.  As a result of the grievance, the plaintiffs and supportive coworkers were transferred to different stations.  The plaintiffs allege that the harassment in their workplace was a direct result of the charges filed with the EEOC and FLHR, and that the County and Union condoned it.  

After the charges were filed, Booth and Brown began to be harassed by their coworkers.  Memos,  along with newspaper articles, naming both Booth and Brown were being placed all around the station.  The memo gave a description of the discrimination charges filed by the plaintiffs and discussed the possibility of Union prices increasing due to the charges.  The plaintiffs began to complain that they felt unsafe around their coworkers and in their work environment.  Due to these complaints, the County required the men to complete fitness-for-duty examinations before being allowed to continue working. The Eleventh Circuit reversed the district court’s entry of judgment in favor of the County, and ordered that judgment be entered against the County.  While affirming the district court’s entry of judgment against the Union, the Eleventh Circuit agreed that the Union retaliated against the plaintiffs by mentioning their names in the memos.  The Eleventh Circuit held that the examinations ordered by the County were sufficient proof to support the Title VII retaliation claim.  Booth v. Pasco Cnty., Fla., 12-14194, 2014 WL 3031177 (11th Cir. July 3, 2014).

http://media.ca11.uscourts.gov/opinions/pub/files/201213389.pdf

New Accommodations for Pregnant Employees

On July 14, 2014, the EEOC issued the Enforcement Guidance on Pregnancy Discrimination, which intends to provide guidance regarding the Pregnancy Discrimination Act (PDA).  Under the PDA, “an employer cannot discriminate against and employee on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.”  42 U.S.C. § 12101.  By issuing this new guidance, the EEOC hopes to reduce the number or pregnancy discrimination claims by requiring employers to offer reasonable accommodations to pregnant workers.

Executive Order Expands Protections to LGBT Federal Employees

On July 21, 2014, President Obama expanded anti-discrimination protections to federal employees and federal contractors through an executive order that prohibits discrimination on the basis of sexual orientation or gender identity.  Executive order 13672, which is enforced by the EEOC, has increased the protections offered for federal LGBT (Lesbian, gay, bisexual, and transgender) workers.  The EEOC relies on several circuit court decisions in regards to transgender discrimination.  In Hopkins, the Supreme Court held that under Title VII, “an employer may not take gender into account in making an employment decision.”  Prince Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989).

Racial Discrimination within International Truck and Engine Corporation

In 1996, Matthew Whitfield—an African American—applied for an open electrician position at Navistar’s plant in Indianapolis.  Whitfield was told that he could not be hired because his experience could not be proven.  In 2001, Whitfield along with 26 other Plaintiff’s sued Navistar under Title VII, alleging Navistar discriminated in hiring and maintained a racially hostile work environment.  Under Title VII, employers may not “discriminate against any individual with respect to his . . . privileges of employment, because of such individual’s race[.]” 42 U.S.C. § 2000e-2(a)(1).

 

In 2013, the district court dismissed Whitfield’s claim, and ruled that Whitfield’s evidence did not show proof of discrimination.  On appeal, the United States Court of Appeals for the Seventh Circuit reversed and held that Whitfield satisfied his burden of proof for showing discrimination, and that Whitfield demonstrated that he was more qualified than white comparators.  The court further explained that Whitfield providing proof that his file was labeled with the word “black” was sufficient to determine discrimination.  Whitfield v. Int'l Truck & Engine Corp., 13-1876, 2014 WL 2547772 (7th Cir. June 6, 2014).

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D06-06/C:13-1876:J:Cudahy:aut:T:fnOp:N:1359095:S:0

Employee Not Required Give Return To Work Date -FMLA

Susan Gienapp worked at Harbor Crest, a residential nursing care facility in Fulton, Illinois.  In January 2011, Gienapp informed the company’s top manager that she needed time off to care for her daughter.  Gienapp’s daughter was diagnosed with thyroid cancer.  Gienapp was granted leave under the Family and Medical Leave Act (“FMLA”).  Under FMLA, employees are allowed upto 12 weeks’ unpaid leave annually to care for children with serious health conditions. 29 U.S.C. § 2612(a)(1).

 

On March 29, Gienapp was terminated from her job because she failed to inform the company of the date she would return from leave.  The United States Court of Appeals, Seventh Circuit, held that Gienapp had complied with the FMLA even though she did not inform the company of her anticipated return date.  The statute requires that an employee gives notice and Gienapp complied.  At the time of the leave, Gienapp was unaware of when she would return because the doctors did not know how long her daughter would have to undergo treatment.  The higher court reversed the lower court’s decision, and remanded the case with instructions to grant summary judgment for Gienapp. Gienapp v. Harbor Crest, 14-1053, 2014 WL 2854816 (7th Cir. June 24, 2014).

http://law.justia.com/cases/federal/appellate-courts/ca7/14-1053/14-1053-2014-06-24.html

Recent Federal Employee Title VII Opinion

            Tahar Ahmed has been employed as an Immigration Enforcement Agent for U.S. Immigration and Customs Enforcement (“ICE”) since 2003.  In 2009, Ahmed applied for the position of Deportation Officer.  Ahmed was notified on October 1 that he was not selected for the position.  Ahmed brought an employment discrimination action against the U.S. Department of Homeland Security alleging that he was denied the position of Deportation Officer based on his religion, race, and national origin: a violation of Title VII of the Civil Rights Act of 1964.

            The United States Court of Appeals, First Circuit, held that a reasonable jury would find that Ahmed was a victim of discrimination based on one of more of his minority characteristics.  Title VII prohibits an employer to discriminate against an employee solely based on his/her religion, race, and national origin.  The court explained that Ahmed provided sufficient evidence that showed a pattern of bypassing minorities for promotion in the Boston ICE office.  Based on the historical evidence offered by Ahmed that there was a complete absence of black and Arab Deportation Officers, and Hispanics felt discouraged about applying for promotions, the court vacated the judgment of the district court and remanded the case for further proceedings.  Ahmed v. Johnson, 13-1054, WL 2111236 (1st Cir. May 21, 2014).

http://media.ca1.uscourts.gov/pdf.opinions/13-1054P2-01A.pdf

Free Speech Rights

            Sean P. Smith was employed as an assistant district attorney (“ADA”) for the Mecklenburg County, North Carolina, District Attorney’s office from 2004 through July 2010.  In 2010 Smith met with the district attorney, Pete Gilchrist, to announce his decision to run for the office of Mecklenburg County district court judge.  While Smith was still employed as an ADA, he gave an interview to the Charlotte FOX television affiliate to discuss his concerns with the Charlotte defensive-driving course.  After voicing his concerns about the driving course, Smith was asked were there any other policies within the DA’s that he disagreed with: Smith refused to comment.

            The next day Gilchrist terminated Smith and failed to provide Smith with any reason for the termination.  Smith brought an action in federal district court seeking money damages against Gilchrist as an elected government official.  Smith also claimed that he was terminated as a result of the interview and the termination was a violation of his free-speech rights under the US and NC constitutions.  The United States Court of Appeals, Fourth Circuit, held that Smith’s speech was protected under the First Amendment and Smith could not be fired for making the statements he made unless his right to speak was outweighed by the district attorney’s legitimate interests.  The court explained that the First Amendment protects speech as well as “the right to be free from retaliation by a public official for the exercise of that right.”

            Under the First Amendment a district attorney running for public office has the right to speak publicly, as a candidate, on matters of public concern.  Based on this reasoning. the court reversed the lower court’s order granting summary judgment against Smith and remanded to the district court for trial.  Smith v. Gilchrist, 749 F.3d 302 (4th Cir. 2014).

http://www.ca4.uscourts.gov/Opinions/Published/131702.P.pdf

Chick-fil-A Pregnancy Discrimination Settlement

On June 5, 2014, the Charlotte District Office of the EEOC (U.S. Equal Employment Opportunity Commission) announced that a Concord, N.C. Chick-fil-A has agreed to pay $10,000 and provide substantial injunctive relief to settle the pregnancy discrimination lawsuit that was filed against the franchise in 2013.  In 2012, John Charping, the owner, interviewed Heather Morrison for a team member position.  During the interview Morrison was six months pregnant, and was asked a series of pregnancy related questions.  Three days after the interview Morrison was informed that she would not be hired, and to call back after she had the baby and appropriate childcare. The EEOC filed a lawsuit against this Chick-fil-A alleging that Morrison did not receive the position as a result of her pregnancy.  Equal Employment Opportunity Commision v. John Charping d/b/a Chick-fil-A.

            Refusing to hire an applicant, or discriminating against a current employee, due to pregnancy is unlawful pursuant to the Pregnancy Discrimination Act of 1978.  The PDA, which was an amendment to Title VII of the Civil Rights Act, was enacted to prohibit discrimination against women on the basis of pregnancy, childbirth, and/or related medical conditions.  In addition to the monetary relief to Morrison, the company entered into a two-year consent decree that requires the company to implement a policy that prohibits pregnancy-based discrimination, as well as annual training on pregnancy discrimination for employees, supervisors and managers.  The company is also required to report to the EEOC all job openings that come available during the next two years, along with any pregnant applicants.

http://www.eeoc.gov/laws/statutes/pregnancy.cfm

http://www.eeoc.gov/eeoc/newsroom/release/6-5-14.cfm