By ROBERT B. MITCHELL
“Pretext” analysis follows the well-known McDonnell Douglas construct. If the plaintiff successfully meets the minimal burden of presenting a prima facie case, the burden of going forward with the evidence shifts to the defendant, who must then articulate a legitimate, non-discriminatory reason for its actions. If the defendant meets this burden, the obligation to go forward falls back onto the plaintiff to demonstrate that discrimination was the “true reason” that stood behind the complained-of adverse employment action.
By JOSHUA B. WALLS
The smoke has barely lifted since Connecticut’s passage of Public Act No. 12-55, “An Act Concerning the Palliative Use of Marijuana,” and the questions continue to pile high. On October 1, 2012, Connecticut became the 17th state to allow the physician-authorized use of marijuana for specifically enumerated and “debilitating medical conditions.” Companies failing to adapt to the law’s provisions run the very real risk of becoming its first test case, a distinction employers would undoubtedly like to avoid.
By PATRICIA REILLY and MATTHEW CURTIN
Congress recently passed two separate bills aimed at strengthening the Economic Espionage Act of 1996 (EEA) and deterring trade secret misappropriation. These important changes to the EEA are intended to reverse the highly criticized decision in United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012), and address increased theft of corporate trade secrets to benefit foreign entities.
By NINA T. PIRROTTI
Most employers these days recognize their duty not to retaliate against their employees for engaging in protected conduct, such as complaining about discrimination, filing a wage or workers’ compensation claim, or reporting a matter of public concern to the appropriate governmental body. Unfortunately, some of those same well-informed employers seem unable to resist the temptation to take a parting shot at their former employees after the employment relationship ends.
By PETER J. MURPHY
Employers have long been told how critical it is to apply their policies in a fair and consistent manner, including neutral absence-control and leave policies. They have also been reminded that not doing so can result in charges of discrimination.
By DANIEL GREEN
The flu season is hitting us hard this year. With it comes the complex question: “Do I tough it out at work or lose a day’s pay?” Forty million Americans do not have sick leave and they are more likely to choose the first alternative, infecting co-workers and even lengthening their recovery time. In fact, a 2011 study in the American Journal of Public Health estimated that a lack of sick time helped spread five million cases of flu-like illness during the 2009 swine flu outbreak.
By VICTORIA WOODIN CHAVEY
Since the enactment of the Americans with Disabilities Act more than 20 years ago, the term “qualified individual with a disability” has become well-entrenched in the vernacular of employment discrimination law. Substantial case law has developed applying this phrase, which constitutes a threshold requirement for claims under the ADA; those who cannot establish that they are “qualified individuals with a disability” necessarily fail to prove their claims.
By JOHN BOLANOVICH
Under Title VII of the Civil Rights Act of 1964 (Title VII), the scope of an employer’s liability for the existence of a hostile work environment (and other forms of discriminatory conduct) depends on whether the harasser is a co-employee of the victim or at a higher level, such as a supervisor or manager.
By ROBERT G. BRODY and REBECCA GOLDBERG
Most union-free employers never give a second thought to the National Labor Relations Board unless a union is knocking at the door. Last year tells us that is a mistake. The NLRB, the federal agency responsible for enforcing the National Labor Relations Act, previously focused almost exclusively on union-related issues. Employers with no union or organizing activity had little reason to concern itself with the NLRB, but that is no longer true.
By GIOVANNA TIBERII WELLER and SHERWIN YODER
Connecticut-based employers received a belated holiday gift on December 26, 2012, when the U.S. Court of Appeals for the Second Circuit interpreted a rarely cited provision of the Connecticut long-arm statute governing personal jurisdiction over individuals.
By JARAD M. LUCAN
For many people, December is a time to slow down, spend time with family, and enjoy the holiday season. For the National Labor Relations Board, however, December proved to be quite a busy month. In the closing weeks of 2012, the board released a slew of decisions, at least two of which overruled long-standing precedent, and all of which will have a significant impact on workplace relations going forward.