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EEOC Wins Millions in Employment Cases
Posted on May. 8, 2013

This is Utah SHRM Legal-mail no. 2013-8 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 

CONTENTS:

- EEOC WINS MILLIONS IN EMPLOYMENT CASES

- COLORADO EMPLOYEE’S POT CLAIM UP IN SMOKE

- SUPREME COURT TO CLARIFY RETALIATION STANDARD

- NLRB OPINION CLARIFIES LAWFUL INVESTIGATIONS RULE

- REMINDER ON UNPAID INTERNS

EEOC WINS MILLIONS IN EMPLOYMENT CASES: The Equal Employment Opportunity Commission (EEOC) recently won jury verdicts totaling over $250 million in two separate employment cases. The first case, resulting in a $250 million verdict, involved claims by 27 persons with intellectual disabilities living in Iowa that were subject to severe abuse and discrimination from their employer over a long period. The plaintiffs, who worked in a turkey processing plant, had alleged they were subjected to verbal abuse, physical confinement, deplorable working conditions and physical abuse such as hitting, kicking and handcuffing. The verdict in this case is thought to be the largest verdict ever obtained by the EEOC’s lawyers. The second case, out of Florida, involved claims of sexual harassment and retaliation from former employees of a travel agency. After trial, the jury awarded the plaintiffs a verdict of over $20 million.

COLORADO EMPLOYEE’S POT CLAIM UP IN SMOKE: A Colorado appeals court has rejected an employee’s argument that the state’s recent legalization of marijuana made his termination for drug use wrongful. The employee had been fired after he tested positive for drugs at work. He sued and contended the discharge was discriminatory under Colorado’s antidiscrimination statute protecting off premises lawful activities. The employer moved to dismiss—contending that the pot use was illegal under federal law—and the trial court agreed and dismissed the case. On appeal, the court agreed and upheld the termination.

SUPREME COURT TO CLARIFY RETALIATION STANDARD: The United States Supreme Court recently heard oral arguments on a case that will clarify the legal standard for judging retaliation claims. The Court will clarify whether a plaintiff need merely prove that retaliation was a motivating factor (along with other factors) or was the “but for” cause, i.e. but for the retaliation the employee would not have been discharged. A decision is expected in June or July of this year.

NLRB OPINION CLARIFIES LAWFUL INVESTIGATIONS RULE: The National Labor Relations Board’s (NLRB) Advice Office has issued an opinion regarding wording that employers can use when giving admonishments to keep investigations confidential. The NLRB has outlawed blanket confidentiality instructions and instead requires an employer to show a particularized need for the same, i.e. a need for witness protection, or risk of evidence being destroyed, or testimony fabricated. In such circumstances, the NLRB now says employers can use the following instruction: “[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

REMINDER ON UNPAID INTERNS: With summer on the approach, remember to be cautious in bringing aboard any unpaid interns. The bottom line on interns is that they must be paid unless they are basically just watching. i.e. the organization cannot derive any immediate advantages from the activities of the intern. Most employers will pay interns because they typically cannot set up a scenario where they derive no benefit from an intern’s work. Here is a link to the U.S. Department of Labor (DOL) fact sheet: http://www.dol.gov/whd/regs/compliance/whdfs71.pdf.  This fact sheet lays out this test for unpaid interns: “There are some circumstances under which individuals who participate in ‘for-profit’ private sector internships or training programs may do so without compensation. The Supreme Court has held that the term ‘suffer or permit to work’ [under the Fair Labor Standards Act] cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program. The following six criteria must be applied when making this determination:  (1) The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; (2) The internship experience is for the benefit of the intern; (3) The intern does not displace regular employees, but works under close supervision of existing staff; (4) The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;  (5) The intern is not necessarily entitled to a job at the conclusion of the internship; and  (6) The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.”

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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

OBrienAV

OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012