1. 1 Trends in Employment Law: Pop Culture Crosses Into the Workplace Christie Newkirk Partner K&L Gates 1717 Main Street301 Commerce St. Suite 2800Suite 3000 Dallas, TX 75201Fort Worth, TX 76102 214-939-5438817-347-5274

2. 2 Higher Standards in Workplace

3. 3 Trend Recent Impact Action steps

4. 4 Higher Standards  Unwelcome sexual comments  No “real” investigation  Liability  Sexual harassment  Negligent investigation Waffle House v. Williams (Tex.App.—Fort Worth 2007, pet. filed)

5. 5 Higher Standards  Multiple complaints / retaliation  Punitive damages  Knowledge of laws  Aware of duty not to retaliate EEOC v. Stocks (5th Cir. 2007)

6. 6 Illness Everywhere Have you watched the evening news lately?

7. 7 Leaves of Absence  Job related stress / depression  Not disabled  Loved job  Job did not “stress her out” Mackey v. Children’s Medical Center (N.D. Tex. 2006)

8. 8 Leaves of Absence  No travel after FMLA leave  Question: Equivalent position  Answer: De Minimus change Smith v. East Baton Rouge Parish Sch. Bd. (5th Cir. 2006)

9. 9 Leaves of Absence  Essential functions  Less favorable treatment  Individual liability Greenlee v. Christu (S.D. Tex. 2007)

10. 10 FMLA Amendments  Effects of USERRA (12 mos. / 1250 hrs)  Qualifying exigency (12 weeks)  Care of a Service Member (26 weeks)

11. 11 Other FMLA Hot Issues  Disparate treatment at expiration of leave  Statement of consequences  Standardized letters  Maximum leave provision  Tentative designation

12. 12 Retaliation Claims

13. 13 Retaliation- Adverse Action  Adverse actions  Reassignment  Suspension without pay (reimbursed)  Would is dissuade a reasonable employee from making a claim? Burlington Northern v. White (2006)

14. 14 Retaliation- Adverse Action  Reprimands  Combative  Inappropriate comments  Unprofessional conduct  Not adverse action Niu v. Revcor (Tex.App.—Fort Worth 2006)

15. 15 Retaliation – Adverse Action  Actions:  Relocation of desks  Vague comments by unnamed employees  Transfers (requested by Plaintiffs)  Not adverse actions McCullough v. Kirkum (5th Cir. 2006)

16. 16 Retaliation  Kelly Services employee  Don’t report any more to client  Fired for insubordination Block v. Kelly Services (5th Cir. 2006)

17. 17 FMLA Retaliation  Fired afternoon on day gave notice  Decision made 4 days prior  Court: Lack of causal connection Norton v. City of San Antonio (W.D. Tex. 2007)

18. 18 Intergenerational Conflicts

19. 19 Intergenerational Conflicts  5 generations  Demand for Gen Y exceeds supply  High maintenance / High performing  Work ethic v Work life balance  Loyalty  Praise

20. 20 Work Life Balance

21. 21 Work Life Balance EEOC Guidance: Family Responsibility Discrimination

22. 22 Employers Must be Mind Readers

23. 23 Mind Reading  Son “hurt badly” and “skinned up”  Not reasonably connected to asthma Greenwell v. State Farm (5th Cir. 2007)

24. 24 Mind Reading  Pregnant employee: Sick and can’t report to work  No call / no show violation  Insufficient notice for FMLA protection Willis v. Coca Cola (5th Cir. 2006)

25. 25 Mind Reading  Condition:  Hypertension / cardio vascular disease  Difficulty walking  Upheld verdict  ADA disabled  Failure to accommodate EEOC v. DuPont (5th Cir. 2007)

26. 26 Protection of Confidential Information

27. 27 Confidential Information  Unilateral contract  Enforceable after employer accepts Sheshunoff v. Johnson (Tex. 2006)

28. 28 Miscellaneous Trends  FLSA  Attorneys fees even with de minimus recovery  Gender identity discrimination  Same sex and other harassment cases

29. 29 Take Away Points:  Leave of absence policy  Training “outside the box”  FMLA mind reading  “Other” forms of discrimination  Handling complaints  Personal liability: FLSA / FMLA  Complaint procedure

30. 30 THE END