For government employers, disciplining and terminating employees can be especially difficult. Not only does the public employer face the same challenges in complying with the standard alphabet soup of employment laws that private employers do, including the ADA, ADEA, FMLA, Title VII, etc., they also have the complicated task of considering the application of an

A federal district court recently sanctioned Walmart for “spoliation of evidence” in an employment litigation case. Although Walmart has asked the Court to reconsider its decision or allow it to appeal the decision to the appellate court, there’s an important lesson to be learned regardless of the outcome: Mind Your Rs & Ds. In other words, pay attention to your company’s retention and destruction of, well, everything employment-related, particularly if there is reason to suspect that litigation is a possibility.
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The Third Circuit Court of Appeals recently issued a decision holding that an employer’s termination of an employee for violating a very broad and restrictive return to work agreement (RWA), which prohibited the employee from all drug and alcohol use during both work and personal time, was lawful.
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At our recent Labor and Employment Law Seminar, we highlighted a number of outstanding legal cases that have the potential to have a significant impact on employer liability. On Monday, the U.S. Supreme Court issued decisions in two closely watched Title VII employment discrimination/retaliation cases. In each case, the Court clarified previously unsettled legal questions in favor of employers.
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In Pennsylvania, as in the majority of states, most employees are presumed to be employed “at will.” Under the at-will employment doctrine, an employer does not need “cause” to terminate an employment relationship. Rather, the employer may terminate an employee at any time, for any reason or no reason at all. (At the same time, the employee reserves the right to terminate his or her employment for any reason.) The only caveat is that the employer’s reason for termination cannot be an illegal one.

Federal and state statutes, as well as the courts, have created a number of exceptions to the doctrine of at-will employment. To be sure, an employee cannot be fired (or demoted, transferred, denied a promotion, or subject to any otherwise “adverse employment action”) on the basis of race, religion, gender, national origin, age, or disability, among other things. In addition, under Pennsylvania law, certain employers may not terminate an employee who has reported that his or her employer is engaging in misconduct.

Such retaliation is prohibited by Pennsylvania’s Whistleblower Law, 43 P.S. § 1421 et seq.
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More and more employers are recognizing what employment attorneys have long known. The most prevalent type of employment discrimination claim is not one based on race, sex, religion, disability or age. Rather, it is one alleging unlawful retaliation. In fact, in 2010, for the first time ever, retaliation claims surpassed race discrimination claims to become the most common type of claim filed with the Equal Employment Opportunity Commission (EEOC). This trend is not expected to end anytime soon.

Just before the holidays, the United States Department of Labor released three new fact sheets offering further guidance to employers on the topic of retaliation under the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
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This post was contributed by Anthony D. Dick, Esq., an Associate and a member of McNees Wallace & Nurick LLC’s Labor and Employment Practice Group in Columbus, Ohio.

The number of retaliation-based charges of discrimination filed with the Equal Employment Opportunity Commission (the “EEOC") has doubled from approximately 18,000 to 36,000 in the last

In its decision in Crawford v. Metropolitan Government of Nashville and Davidson City, the United States Supreme Court considered the scope of Title VII protections from retaliation for employees who act as witnesses in an employer’s internal investigation into harassment. The Court held that an employee’s involvement in the employer’s internal investigation constituted opposition to unlawful employment practices when she responded to her employer’s questions in a manner disapproving of accused harasser’s sexually obnoxious behavior toward her. The Court’s decision unfortunately does not create a bright line standard for employers defining the scope of an employee’s involvement in an internal investigation which can trigger protections from retaliation. Employers should tread very carefully in this area.


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