Employment Law Alert Feb
February 11, 2011
Supreme Court Recognizes “Relationship” Retaliation
The U.S. Supreme Court has allowed an employee to sue his employer for terminating him in retaliation for his fiancée’s filing a sex discrimination charge against their same employer. Because termination of the plaintiff was intended to harm his fiancée, the Court held that this was unlawful retaliation. In so ruling, the Court held that an employee may not be subject to retaliation as a result of a protected activity (e.g.,filing or threatening a discrimination complaint) by another employee with whom the retaliated against employee has a close association or relationship.
The Court declined to specifically identify those relationships that are protected, acknowledging that it may be difficult to determine which relationships are subject to protection. Nonetheless, in light of this decision, employers need to be vigilant about taking action that could be claimed to be retaliatory not only against an employee who files or threatens a claim (or engages in other protected activity), but also against a co-worker with whom the employee has a close relationship, particularly a co-worker who is a relative or in a similar relationship. Employers should review and update, if necessary, their non-retaliation policies and management training to address these situations and avoid claims of improper conduct.
Update on the District of Columbia Accrued Sick and Safe Leave Act
The District of Columbia has issued final regulations under the District of Columbia Accrued Sick and Safe Leave Act. For a summary of this law, see our Employment Alert here. Among other things, these regulations clarify uncertainty in the Act as to whether an employee would begin to accrue leave when employment begins and be able to begin using it after 90 days of employment or whether leave would not begin to accrue and be used until after one year of employment. The regulations make clear it is the latter by (i) defining an “employee” as an individual who has been employed by the same employer for at least one year without a break in service (except for regular holiday, sick, or personal leave granted by the employer) and who has worked at least 1,000 hours of service with such employer during the previous 12-month period, and (ii) indicating that an individual does not begin to accrue paid leave until the individual satisfies this requirement (not when employment begins). An “employee” includes a person who is employed by the employer in more than one location and spends more than 50% of his or her working time for the employer in D.C. or whose employment is based in D.C. and who regularly spends a substantial part of his or her time working for the employer in D.C. and does not spend more than 50% of his or her work-time in any particular state. The regulations can be found here. Employers should review and modify their leave policies as necessary.
In addition, the D.C. government has prepared the notice describing the Act that employers are required to post in a conspicuous place. Employers subject to the Act should make sure this notice is properly posted for their covered employees alongside other required employment-related posters.
Reminder – Maryland Healthy Retail Employee Act
Remember that the Maryland Healthy Retail Employee Act, requiring breaks for certain employees of Maryland retailers with 50 or more employees, goes into effect on March 1, 2011. For a summary of this law, see our Employment Alert here. Covered employers should review and update their policies as necessary.
The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Employment and Labor Law Group or the Shulman Rogers attorney with whom you regularly work.