Overtime Exemption Laws may get an Overhaul

As you may have heard, President Obama has directed the Department of Labor to “modernize and streamline” overtime exemptions. The directive aims to simplify and minimize exemptions that prevent employees from receiving overtime pay under the Fair Labor Standards Act. Some of the primary areas addressed are exemptions relating to white collar employees, home health care workers, and computer professionals, to name a few. The proposed changes could mean that many American employees become entitled to overtime pay, even if they are not currently receiving it.

The FLSA requires that all non-exempt employees be paid one and one half times their normal rate of pay for every hour over forty hours worked per workweek. President Obama’s proposed changes could affect many American employees who work significant overtime hours. More to come.

FMLA Article by Attorney J. Scott Falls Published in South Carolina Lawyer Magazine

Attorney J. Scott Falls and summer law clerk/law student Emily Nellermoe’s article on the mistakes employers make in assessing FMLA leave has been selected for publication by the South Carolina Lawyer magazine. It was published as the cover story of South Carolina Lawyer in the January 2014 edition. Employees who work for employers with more than 50 employees should read the article to understand their rights under the FMLA. If you have an FMLA question or concern, please contact us. Click on the link above to read the article.

Pregnancy Discrimination in the Workplace


Given the frequency of women who chose to start a family while maintaining employment, it can be hard to believe that pregnancy discrimination still exists. Despite the reality of modern workplaces, discrimination against and harassment of expectant mothers actually occurs all the time. Fortunately, there are federal and state laws in place to protect women from such workplace behavior.


In 1978, Congress amended the definition of gender discrimination in Title VII by adding the Pregnancy Discrimination Act, which prohibits discrimination because of pregnancy, childbirth, or related medical conditions in workplaces that employee 15 or more workers (Pub. L. No. 95-555, 92 Stat. 2076 (1978), amending 42 U.S.C. § 2000e-(k)). The Act states that an employer is prohibited from terminating or refusing to hire/promote a woman on the basis of her pregnancy. Employers cannot discriminatorily assign or re-assign pregnant women to unfavorable positions, take away their benefits, or require mandatory leave periods.

Pregnancy by itself is not a disability because it is not an impairment (unless a related medical condition develops, e.g. gestational diabetes or another ADA-eligible disability). However, a pregnant woman must be treated the same way as other similarly situated sick or temporarily disabled workers; this means that if disabled or sick workers are entitled to receive reasonable accommodations, alternative assignments, or paid/unpaid leave, pregnant women are entitled to as well.


Employers cannot discriminate against job candidates during an interview or job placement process because they are pregnant. In addition, any gender-specific interview questions, including those related to childbearing or motherhood, are prohibited (EEOC Sex Discrimination Guidelines, 29 C.F.R. § 1604.7 (1983)).   In the case King v. Trans World Airlines, Inc., 738 F.2d 255 (8th Cir. 1984), Ms. King, a mother of four, was being interviewed for an entry-level position with the kitchen department at Trans World Airlines (TWA). During the interview, Ms. King’s interviewer asked her questions about her recent pregnancy, her marital status, the number of children she had, whether these children were “illegitimate,” and her plans for future childbearing. After this process, TWA informed Ms. King that there were no openings in the kitchen department; however, within that same month, TWA proceeded to hire at least ten people for the exact same position. The Court ordered the employer to grant Ms. King injunctive relief (protection against future discrimination and another chance at the interview).


Pregnancy harassment can be physical, verbal, or written and involve offensive or unwelcome comments, jokes, gestures, etc. related to a woman’s pregnancy. Harassment in the workplace becomes unlawful when such acts become so frequent and/or severe that both a reasonable person (objective test) and the employee herself (subjective test) could perceive that a hostile or abusive work environment has been created (see Harris v. Forklift Systems Inc., 114 S.Ct. 367 (1993)). Anyone, including supervisors, coworkers, and customers, can potentially create a hostile work environment.


Women who qualify for and take FMLA maternity leave must be reinstated to the same position with the same responsibilities that they had prior to taking leave. Employees and employers who aren’t covered under the FMLA must still abide by the PDA’s rule of equivalent disability treatment discussed above. In Garner v. Wal-Mart Stores, 807 F. 2d 1536 (11th Cir. 1987), a Wal-Mart department manager, Ms. Garner, took approved maternity leave. Upon her return, Ms. Garner was given the new job title of “floater,” which had far fewer responsibilities than her previous position. Especially in light of the fact that Wal-Mart had once before held open a male department manager’s position for him while he took sick leave, the 11th Circuit held that Ms. Garner had established Title VII sex discrimination because she hadn’t been given her old position back; the court awarded Ms. Garner nominal damages.


In order for a woman to show gender discrimination on the basis of pregnancy, she must demonstrate the traditional elements of prima facie Title VII sex discrimination: (1) that she is a member of a protected class [pregnant women]; (2) that she was performing her job satisfactorily at the time of her discharge or demotion; (3) that she was subjected to adverse employment action; and (4) that she was either replaced or treated differently than persons outside of the protected class. If the employee can show these four elements, then, according to the McDonnell-Douglas burden-shifting analysis, the employer must demonstrate that the reason for the adverse employment action was unrelated to gender/pregnancy. The employee can attempt to rebut this by showing that the reason provided by the employer was pretext (a false excuse or cover-up) for a discriminatory reason.


In 2011 alone, pregnant women who filed charges with the EEOC or a related local employment agency (almost 5,800 claims) received $17.2 million in monetary benefits (this figure does not include damages obtained in litigation!). If you feel you have been discriminated against for the reasons discussed above, make an internal complaint with your employer, file a charge with the EEOC, and contact an attorney.

Supreme Court Revisits Retaliation

Retaliation claims under Title VII are one of the most frequently filed types of claims at the EEOC (31,000 in 2012), second only to claims of racial discrimination. A new ruling by the Supreme Court will likely curb these numbers sharply. The decision in University of Texas Medical Center v. Nassar, one of two employer-friendly opinions issued on the same day, is bad news for employees who feel they have been retaliated against for exercising their Title VII rights.

Title VII provides, “it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). An unlawful employment practice is “established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

The plaintiff in the Nassar case was Dr. Naiel Nassar, a medical doctor of Middle Eastern descent. He alleged that his superior, Dr. Beth Levine, discriminated against him on the basis of his religion and ethnic heritage. After Nassar reported the behavior, his employer (University of Texas) withdrew a job offer it had made some time earlier. Nassar sued UT for harassment and retaliation, arguing that UT retaliated against his report of workplace discrimination by denying him a job it had previously offered him. Nassar’s case hinged on the reason behind UT’s decision to pull the plug on his job offer; he argued that an employer can be held liable for “retaliation” as long as retaliating was one of several motivating factors (the “motivating factor standard”) for an employer’s adverse employment action (here, the revocation of a job offer). UT argued that the standard for employer liability is higher (the “but-for standard,” meaning the plaintiff must show that the adverse employment action would not have occurred but-for the defendant’s conduct, i.e. the job offer would have never been revoked if Nassar had never reported Dr. Levine to UT for discrimination).

The Supreme Court agreed with UT. In a 5-4 decision written by Justice Kennedy, the Court required the employee-claimant to show that his protected activity (reporting a Title VII discrimination issue; see 42 U.S.C. § 2000e-3(a)) was the “but-for cause” of the adverse employment action (termination, not getting hired, demotion, pay decrease, etc.) taken against him. The Court made this determination after comparing and contrasted the relevant portions of Title VII to similar pieces of legislation, interpreting statute language and construction, inferring Congress’s intent, and stating the need to prevent frivolous and burdensome lawsuits in our legal system.   Prior to this, some lower courts had been on Nassar’s side, holding that an employer who made an adverse employment action could be held liable for retaliation even if there were other “valid” reasons for taking that action; now, the employee bears a bigger burden, and must show that the adverse employment action was taken for the primary purpose of retaliation.

What does Nassar mean for employees?

Unfortunately, this ruling has limited the scope of employees’ Title VII rights and makes it harder for victims of retaliation to sue by providing an easy defense for employers.  An employer can escape liability simply by showing that other reasons existed for the adverse employment action and that such action would have been taken regardless of any Title VII discrimination complaints made by the employee.  In her dissent, Justice Ginsburg laments that the Court’s decision has “undermined” the purpose of Title VII retaliation claims by encouraging employees to remain silent when they are victims of or witnesses to acts of discrimination in the workplace. We will have to wait and see if Congress revises Title VII or chooses to accept the majority’s interpretation.

Supreme Court Weighs in on Who is Considered a Supervisor for Purposes of Vicarious Liability under Title VII

Last week, the Supreme Court delivered an opinion in Vance v. Ball State University, answering the question of who qualifies as a “supervisor” under Title VII; their decision is going to have a big impact on dozens of active employment law cases.

Title VII of the Civil Rights Act provides that it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—(2)(a)(1).

There are different levels of employer liability depending on who the harasser is. If the harasser is a supervisor, the employer is vicariously (i.e., automatically) liable under Title VII. The Equal Opportunity Commission and several lower courts have butted heads over the meaning of “supervisor.” The EEOC has maintained that a supervisor is anyone with “the ability to exercise significant direction over another’s daily work” while the courts have applied a more stringent standard (the ability of the person to undertake “tangible employment actions”, discussed below).

In this case, Maetta Vance, an African-American woman, claimed that Saundra Davis, her white co-worker, was creating a racially hostile work environment in violation of Title VII. Vance (a “catering assistant”) claimed that Davis (a “catering specialist”) was her supervisor, entitling her to Title VII protections; her employer, Ball State University, contended that Davis was not a supervisor because she did not have the power to “hire, fire, demote, promote, transfer, or discipline Vance.”

In a 5-4 decision delivered by Justice Alito, the Court sided with Ball State, stating that a “supervisor” is someone who has the ability to take “tangible employment actions” (i.e., an act which causes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). This ruling rejects Vance’s and the EEOC’s “nebulous” definition of supervisor, saying it creates undue confusion among judges and jurors. Vance lost for two reasons: (1) Davis was not a “supervisor” because she did not have the power to take tangible employment actions against Vance; and (2) Vance was not able to show that Ball State was negligent or unreasonable in how they handled the situation.

What does Ball State mean for employees?

Unfortunately, this decision has limited the scope of employees’ Title VII rights and makes it harder for victims of harassment to sue right away. However, if a non-supervisor coworker is harassing you (see these blog posts for discussions of what “harassment” really is), your employer still has obligations to fulfill. Because harassment from any source can contribute to a volatile work environment, you can still complain to your employer, who then must take action to prevent the harassment from occurring again. If your employer is negligent in taking action and the harassment continues, you may have a valid Title VII claim. As the Court stated, “an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.”

Social Media & Your Job

Have you checked your Facebook, Twitter, Instagram, LinkedIn, YouTube, Pinterest, Reddit, and email accounts today? A lot of employees have; more and more are finding themselves in hot water because of it.

Inappropriate use of social media can prevent you from getting hired or could get you terminated. If you’re thinking, “This wouldn’t happen to me…” take a look at this infographic published by the social media management site, Reppler. Your friends aren’t the only ones looking at your Tweets and Facebook photos! Who can legally view your online activity? What are your rights as an employee?

Using social media at work

An employer has the right to reprimand employees for their online activity during working hours (for example, these eight hospital employees were fired after posting a photo of themselves at work engaging in non work-related activities). Take a look at these statistics from the American Management Association’s 2007 Electronic Monitoring & Surveillance Survey:

  • 66% of all employers electronically monitor their workers’ internet use; 45% track keystrokes and time spent online; 43% store and review computer files
  • 28% of employers have fired employees for email misuse; 30% have terminated employees for internet misuse
  • Violation of company policy, inappropriate content/language use, and excessive personal use are some of the top reasons for internet-based terminations

Most private employees have extremely limited privacy rights in the workplace. All employer-provided communication devices and systems (computers, laptops, work email, cell phones, etc.) are potentially subject to monitoring. If you have access to the internet at work, it is highly likely that your employer is monitoring your online usage. If you signed a consent form when you were hired, you may have also given your employer authorization to monitor personal internet-based accounts you access on the clock. If you don’t want your employer to have free access to your Facebook, Twitter, YouTube, Instagram, and personal email accounts, do not log on at work!

Company Email Accounts

Email conversations are not the same as telephone conversations. Phone conversations are partially protected by privacy laws; email conversations are sent across a public network where you have no right to privacy.

A Pennsylvania District Court set forth the majority rule in 1996 (Smyth v. Pillsbury Company) that employees have no privacy rights when it comes to company emails. The public policy interest a company has in refraining from making inappropriate, unprofessional, and/or offensive comments “outweigh[s] any privacy interest the employee may have in those comments.”

What about the content of my social media pages, regardless of when/where I post?

Job-related content

In 2011, the National Labor Relations Board (the government agency that enforces labor law and investigates labor-related complaints) released these guidelines for protected social media content. To summarize, the National Labor Relations Act (29 U.S.C. §§ 151-69) gives employees (not supervisors) the right to . . .

  • Discuss “the terms and conditions of their employment with others”
  • “Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .”

“Concerted activity” is defined as an activity that has “the object of initiating or inducing or preparing for group action…” and includes bringing “truly group complaints” to the company’s attention.

You may have heard about the case NLRB v. American Medical Response (2011) involving an ambulance company employee (Dawnmarie Souza) who complained about her boss on Facebook. Her status sparked an internet conversation amongst her coworkers; eventually, her supervisor found out and Souza was fired. The NLRB took her case, arguing that the employer’s internet policy was too restrictive and did not allow for protected “concerted activity.” The ambulance company eventually settled, agreeing to revise its “overly-broad social media policy” to allow workers to collectively and publically discuss wages, working hours, and working conditions.

In another case, an employee posted concerns about her employer’s company on a public Facebook page. She discussed wages, company policies, and made other allegations which would have normally qualified her for NLRA protection had she discussed the comment with other employees before or after the posting was made. Because the employee posted without consulting anyone else, her termination was upheld.

Although speaking on behalf of coworkers in order to improve your working conditions (e.g. posting about illegal company practices) is a protected activity, employees should still use extreme caution when doing so. The best way to handle a problem is to report the issue internally where you work; after that, you may want to seek the help of an appropriate government agency (EEOC, SEC, EPA, NLRB, etc.) and contact an attorney.

Don’t I have a First Amendment right to free speech in the workplace?

Nope – not if you’re employed by a private company. Government employees have some limited protections under the First Amendment (e.g. the right to speak on matters of public concern), but not many.

The Supreme Court held in City of San Diego v. Roe (2004) that a police officer’s inappropriate video was not protected speech under the First Amendment. The general public has rights to free speech that public (and private) employees do not.

The only speech that’s protected across the board is “concerted activity” (see discussion above).  Here are some tips about posting online:

Be especially mindful if you’re considering posting any religious, political, or otherwise contentious opinions online. You could get yourself into a sticky situation if you offend someone in the workplace.

Remember that humor is not a defense for a work-related posting! This car salesman was fired for his snarky Facebook posts; this newspaper reporter was, too.

Hashtags (#), a social media tool previously unique to Twitter and Instagram, are now up and running on Facebook. Tagging your posts, e.g., #workstinks or #ihatemyboss, only makes it easier for you to get in trouble. See this article about people getting fired for their Instagram posts and related hashtags.

Other Content

There are dozens of cases where employees have been fired for non work-related internet content because it was inappropriate, offensive, and/or threatened their company’s reputation. This high school teacher and this professional cheerleader were both fired after Facebook photos surfaced showing them partying. This teacher was fired for listing inappropriate and racially charged comments under her “About Me” section. For more examples, check out “The Facebook Fired”, a blog with an extensive archive of social media-related terminations dating back to 2010.


Be cautious of your social media activity and email usage at all times, even when you’re not at work! Social media content and internet history are both discoverable (anything you post could potentially be brought in as evidence against you during a trial; see this Pennsylvania case for a discussion of relevant discoverability issues). According to the American Management Association, 24% of employers have had company emails subpoenaed by regulatory agencies and courts; another 15% have been involved in litigation triggered by employee emails. You never know what kind of legal issue you could be stuck in, so email, post, and “like” carefully!


You may want to consider utilizing employee consent forms that authorize you as the employer to monitor workplace communications. Lots of companies are starting to implement social media policies, but these could be held invalid if they are too broad. Workplace internet policy is a new and evolving area of the law, so contact an attorney for assistance in drafting these types of documents.

If you discover inappropriate social media content posted by an employee, make sure that content has a link to job performance and/or company reputation before penalizing the worker. If the content in question involved two or more employees (i.e. not a solo act), it may fall under the NLRA’s category of protected speech (which can include “egregious name-calling”). Check with an attorney before taking disciplinary action.

Employers should be careful when reviewing social media content for potential hires; looking at an applicant’s Facebook page exposes you to a lot of liability if you discover an applicant is part of a federally protected class (race, gender, ethnicity, national origin, etc.). Before searching for an applicant online, it would be ideal to obtain consent from him/her.