Merck is Defendant in $100 Million Lawsuit

Ms. Kelli Smith was a senior sales representative with Merck & Co..  She alleges she was a top sales performer.  Ms. Smith further asserts that she was demoted for taking maternity leave and thereafter further penalized through unfair performance evaluations and other actions.  Ultimately, she alleges that her career stalled because of her maternity leave.

           

The lawsuit asserts that Merck institutionalizes discrimination as its’ sales incentive plan “provides that the compensation of managers and directors is decreased when their employees take legally protected leave.”  This policy, it is posited, discourages management from hiring and promoting women.  The policy is company wide.

Ms. Smith claims that the drug maker engages in “systematic, company wide discriminatory treatment of its female employees on the basis of their gender and their taking federal and state-protected pregnancy leave.”  She seeks in excess of $100 million.

Anti-Harrasment Training Plans? EPS Debuts New Training Videos...

Harassment training is a critical part of your organizations' strategy to educate and energize your workforce while fulfilling legal requirements and reducing exposire to employment lawsuits.

EPS and its attorney-consultants have provided thousands of training classes for clients in a wide range of industries throughout the United States for more than 15 years. We are  pleased to introduce new training courses based on a scenario approach to anti-harassment concepts coupled with new videos featuring subtle, contemporary scenarios that lead to in-depth discussions of the principles and policies that employers must reinforce.

We recently published an article focusing on the advantages of live training, including a brief clip of our new videos that you may find helpful. If you would like more information about EPS' training services, please contact us at EPS@EPSPros.com or call 800.727.2677.

EEOC Settles First Case of GINA

The Genetic Information Nondiscrimination Act (“GINA”) prevents employers from using genetic information to the detriment of their employees.  It specifically prohibits the use of genetic information when making employment decisions, it restricts the acquisition of genetic information by employers, it limits the disclosure of such information, and prohibits retaliation against employees who complain.

In the facts underlying the EEOC’s lawsuit, an applicant seeking employment with Fabricut was asked to provide her family’s medical history.  The request came after she had been offered permanent employment and in the course of a mandatory medical examination.  A third party contractor conducted the examination and questioning.   She was asked to disclose any familial history of medical conditions such as heart disease, hypertension, cancer, tuberculosis, mental illnesses, etc..

 The cased settled for $50,000 and the company agreed to take remedial action to prevent such discrimination in the future. The EEOC re-emphasized that requesting family medical history violates GINA.

NLRB Awards Medical Expenses

In Norquay Construction, Inc., a union agent pursued an unfair labor practice after he was pushed down the stairs.  This pushing occurred after the agent tried to uphold “area standards” and then was ejected from the construction site.  The NLRB found that the NLRA protects union agents acting to uphold area union labor standards.  Thus, it was an unfair labor practice.

The NLRB required the company to compensate for back pay but also medical expenses.  The medical expenses would be paid if the union agent could demonstrate that he incurred medical expense and suffered a loss of pay and benefits because of the assault. 

The employer argued against this remedy.  NLRB justified the unusual award based on two of its prior decisions.  In one, medical expenses were awarded for reimbursement of medical and rehabilitative expenses not covered by insurance.  In the other case, the NLRB ordered the employer to pay medical expenses up until the employee was medically released to return to work.  The Board distinguished its medical expense awards from tort remedies.  Tort remedies are for nonspecific injuries.  The Board’s awards of medical expenses are very specific and easily ascertained.

NLRB Gives Guidance on Confidentiality of Workplace Investigations

Following up on its decision in Banner Health System, the NLRB has issued guidance on the issue of confidentiality in workplace investigations. In Banner, the NLRB found that a uniform rule requiring employees to keep quiet about workplace investigations violated the NLRA.  Such a rule inhibited employees’ rights to engage in protected concerted activity.

In its’ Advice Memorandum, the Board gives specific language that it considers lawful under Section 7 of the NLRA. The primary idea is that a blanket prohibition against speaking is not acceptable under the Act.  The sample Code of Conduct language given by the NLRB: “_____ 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 ____ 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.”

The employer has the burden to show in each particular situation that confidentiality has a business justification that outweighs an employee’s right to engage in concerted activity.

Preferring Your Girlfriend is Not Sex Discrimination

The Second Circuit has reaffirmed that giving preferential treatment to a girlfriend is not reflective of sex discrimination. Kelly v. Howard I. Shapiro & Associates Consulting Engineers. P.C..,

 Ms. Kelly was a human resources manager in her family’s company.  Her brother, a vice-president in the company, was having an affair with another employee. Ms. Kelly felt this affair created a hostile environment because her brother favored this employee.  She alleged that her duties were reduced to benefit the girlfriend. Ms. Kelly also alleged that the girlfriend took unlimited vacation time and fabricated timesheets. She quit her job after complaining about the affair.

Ms. Kelly’s suit contained claims of sex discrimination and retaliation. According to the Second Circuit, the conduct alleged did not constitute sexual discrimination because it was not based on her gender and it did not represent “widespread sexual favoritism.” The retaliation claim also failed.  Ms. Kelly did not establish that she had engaged in protected activity and that her employer was aware of that activity. She did not make clear to the company that the conduct at issue was of a discriminatory nature.

NLRB Posting No Longer Required

The Court of Appeals in D.C. has struck down a 2011 NLRB Notice Posting Rule.  The Rule required employers to post a notice of employees’ rights under the National Labor Relations Act (“NLRA”). The NLRB was found to have exceeded its’ rulemaking authority.

Approximately six million employers had been required to post a notice advising employees of their right to organize. Employers who either refused or failed to do so within certain time constraints had committed an unfair labor practice.

The NLRA protects employers by allowing that the expression of any “views, argument, or opinion, or the dissemination thereof…shall not constitute or be evidence of an unfair labor practice.”   Thus, the Court of Appeal concluded that the NLRB may not make employers publicize its message.  Each of the enforcement provisions that made failure to post an unfair labor practice in the Notice Posting Rule were also found to be unlawful by the Court of Appeals.   No part of the Notice Posting Rule was permitted to survive.