Archive | July, 2013

Update: Irresistible Worker Termination Decision Upheld on Reconsideration

As you may recall, I bloggupdateed a few months ago about an employee who was fired from her position as a dental assistant due to concerns about a relationship potentially developing between that employee and her employer. In this case, the employer’s wife was concerned that a sexual relationship was going to develop between the employer and the employee based on a sexual attraction and lewd texts. Due to this concern, the wife encouraged her husband (the employer) to discharge the employee.  At the time of my original blogging, the Iowa Supreme Court had issued a unanimous decision holding that there was no sex discrimination when a male employer terminates a female employee because there are concerns about the nature of the relationship between the parties. Following that decision, the Iowa Supreme Court granted re-consideration. The new decision has now been issued. Although the new decision is no longer unanimous, it continues to hold that there was no sex discrimination under the facts presented to it. The decision is based on evidence which supported a finding that the adverse employment action was based on the relationship between the parties rather than the employee’s gender. Indeed, the employee was replaced by another female. This decision confirms that when an adverse employment action is taken by an employer due to a consensual relationship between the employer and the employee, it is not gender discrimination. This time around, however, the Court cautions that had the employee alleged sexual harassment, their decision may have been different.

Recent U.S. Supreme Court Decision Affects the Standard for Retaliation Claims


In University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court has recently held that Title VII retaliation claims must be proven in accordance with a but-for causation standard. This but-for standard is different from the standard for status-based discrimination claims which requires an employee to only demonstrate that discrimination was a motive (as opposed to the motive). This but-for standard is a more stringent standard, which may be of benefit to employers in defending against retaliation claims.

Recent U.S. Supreme Court Decision Sheds Some Light on who is a Supervisor under Title VII

titleviiAs we all know, an employer’s potential liability under Title VII hinges, in part, on whether the alleged harasser is a co-worker or supervisor of the alleged victim. However, in some cases, the distinction between co-worker and supervisor can be unclear.  Many presumed that if the alleged harasser oversaw the work of the alleged victim then that employee must be the alleged victim’s supervisor. The U.S. Supreme Court in Vance v. Ball has held that an employee is a supervisor for purposes of vicarious liability under Title VII when that employee is empowered by the employer to take tangible employment actions against the alleged victim. Tangible employment actions include hiring, firing, promotion, reassignment, or another decision/action causing a significant effect on benefits or employment status.

When is a Hostile Work Environment in fact a Hostile Work Environment?

workplaceThe Third Circuit Court of Appeals recently issued an opinion in Fichter v. AMG Resources Group, which sheds some light on this common cause of action. In this case, the employee cited about 14 examples of what she believed created a hostile work environment. Many of these complaints are ones that we hear employees complain about on a daily basis. These complaints included being required to tell her manager if she was arriving late or leaving early, being asked to finish projects quickly, not receiving a raise in several years, being asked for information but then having her manager leave before she had a chance to respond, having her workload increased, and not having her opinions respected. The employer prevailed when the Court found that these allegations are not violations of Title VII as they are within the scope of common typical managerial functions. The Court also confirmed that Title VII does not guarantee the perfect workplace.

Unpaid Internships and the FLSA

The FLSA creates a narrow exception to the applicability of its minimum wage and overtime provisions for unpaid internships when certain enumerated criteria are satisfied. If these strict criteria are not satisfied, then the position is not exempt from the overtime and minimum age requirements of the FLSA. Therefore, those individuals would be considered normal employees and must be compensated in accordance with the FLSA. These criteria are as follows:

  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.

These criteria have been provided specific meanings and uses by the FLSA and the applicable case law; therefore, we recommend that employers secure legal advice as to whether these criteria are satisfied in their specific circumstances. However, one rule to keep in mind is that if the employer is using the intern as a substitute for a regular worker, then it is quite likely that the intern would be subject to the minimum wage and overtime provisions of the FLSA.