Category Archives: Performance Management, Discipline & Termination

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New York State Legislators Propose “Wrongful Discharge” Law

By Allan Bloom, Evandro Gigante, Laura Fant and Hannah Morris on March 8, 2023 Posted in Performance Management, Discipline & Termination

A trio of New York State Senators has proposed a bill that would create a cause of action for “wrongful discharge.” If enacted, the “Safeguarding Employees and Accountability for Termination (SEAT) Act” would be codified in a new Article 20-D of the Labor Law and take effect 90 days after being signed into law. The … Continue Reading

NYC Council Considering Proposal To Significantly Limit At-Will Employment and Electronic Monitoring of Employees

By Evandro Gigante, Joseph O’Keefe, Laura Fant and Hannah Morris on December 14, 2022 Posted in Performance Management, Discipline & Termination

A proposed ordinance has been introduced before the New York City Council to generally prohibit private employers from terminating employees without “just cause” or a “bona fide economic reason.” If enacted, this proposal effectively eliminates the longstanding principle of at-will employment in New York City. The proposed ordinance also would limit the use of electronic … Continue Reading

Massachusetts Creates Exception to At-Will Employment for Employees Exercising the “Right of Rebuttal”

By Mark W. Batten and Rebecca Fishbein on December 21, 2021 Posted in Performance Management, Discipline & Termination

On December 17, 2021, the highest state court in Massachusetts held that an employer may not terminate an employee solely for exercising his right to file a rebuttal to be included in his personnel file. The Supreme Judicial Court found this new common law remedy is necessary to fully protect this legal right and to … Continue Reading

[Podcast]: Recent Developments in Title VII

By Harris Mufson and Laura Fant on March 28, 2018 Posted in Discrimination, Harassment and Retaliation, Performance Management, Discipline & Termination, The Proskauer Brief Podcast, Workplace Policies and Procedures

In this episode of The Proskauer Brief, senior counsel Harris Mufson and associate Laura Fant discuss the latest developments in Title VII. We will discuss the two recent circuit court decisions concerning the scope of sex discrimination under Title VII, one by the Second Circuit and the other by the Sixth Circuit. In addition, we will highlight some of … Continue Reading

[Podcast]: Severance Pay Plans & ERISA

By Anthony Cacace and Robert Projansky on February 16, 2018 Posted in Performance Management, Discipline & Termination, The Proskauer Brief Podcast

In this benefits law edition of The Proskauer Brief, senior counsel Anthony Cacace and partner Robert Projansky discuss how severance plans can be subject to ERISA. We will discuss the key advantages of having severance pay arrangements covered by ERISA and what employers can do to design plans that comply with the substantive and procedural requirements of ERISA, but … Continue Reading

Proskauer’s Value Insights Survey is Now Live

By Elise M. Bloom on January 17, 2017 Posted in Accessibility & Accommodation, Class/Collective Action, Discrimination, Harassment and Retaliation, Hiring/Background Checks, Independent Contractor, Leaves of Absences, Litigation and Arbitration, Performance Management, Discipline & Termination, Strategic Corporate Planning, Vacation policy, Wage and Hour, Workplace Policies and Procedures, Workplace Restructuring and WARN

Proskauer’s second Value Insights: Delivering Value in Labor and Employment Law survey is now live and we want to hear from you. Value Insights explores how in-house counsel can maximize the value they provide to their business partners and correspondingly, how they can most effectively partner with outside counsel on managing labor and employment work. … Continue Reading

Participate in Proskauer’s Value Insights Survey

By Elise M. Bloom on December 2, 2016 Posted in Accessibility & Accommodation, Class/Collective Action, Discrimination, Harassment and Retaliation, Hiring/Background Checks, Leaves of Absences, Litigation and Arbitration, Performance Management, Discipline & Termination, Vacation policy, Wage and Hour, Workplace Policies and Procedures, Workplace Restructuring and WARN

Last year, Proskauer’s Labor and Employment Law Department conducted its inaugural Value Insights: Delivering Value in Labor and Employment Law survey, a resource that includes input from in-house decision makers on labor and employment matters and provides in-house counsel with tools to both more effectively help their business partners achieve their objectives and to work with … Continue Reading

Proskauer Releases Survey Results on Value Insights: Delivering Value in Labor and Employment Law

By Katharine Parker on May 23, 2016 Posted in Accessibility & Accommodation, Class/Collective Action, Discrimination, Harassment and Retaliation, Hiring/Background Checks, Immigration, Independent Contractor, Leaves of Absences, Litigation and Arbitration, National Labor Relations Board, Non-Competes and Protection of Corporate Assets, Performance Management, Discipline & Termination, Strategic Corporate Planning, Vacation policy, Wage and Hour, Whistleblower, Workplace Policies and Procedures, Workplace Restructuring and WARN

Proskauer’s Labor and Employment Law Department is pleased to announce the release of its inaugural Value Insights: Delivering Value in Labor and Employment Law survey, a resource that includes input from in-house decision makers on labor and employment matters and provides in-house counsel with tools to both more effectively help their business partners achieve their objectives … Continue Reading

Seventh Circuit Holds That FMLA Limitations Period Begins To Run At Time Of Each Leave Denial

By Katharine Parker and Ryan Hutzler on October 23, 2015 Posted in Leaves of Absences, Performance Management, Discipline & Termination

On October 20, the Seventh Circuit held, in Barrett v. Illinois Department of Corrections, that a former state employee’s Family and Medical Leave Act (“FMLA”) denial of leave claim was untimely because suit was not filed until the employee was fired for her poor attendance record and not within two years of each alleged leave … Continue Reading

Latest EEOC Discrimination Suit Targets Employment Exam

By Daniel Saperstein and Katharine Parker on August 3, 2015 Posted in Discrimination, Harassment and Retaliation, Litigation and Arbitration, Performance Management, Discipline & Termination, Workplace Policies and Procedures

For years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that certain employment tests and screening procedures can serve to discriminate against racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) when not “properly validated” as “job-related” and “consistent with business necessity” under the … Continue Reading

Colorado Supreme Court Okays Discharge of Medical Marijuana-Using Employee

By Daniel Saperstein and Katharine Parker on June 22, 2015 Posted in Discrimination, Harassment and Retaliation, Hiring/Background Checks, Litigation and Arbitration, Performance Management, Discipline & Termination, Workplace Policies and Procedures

Colorado, like some other states including New York, has a law that generally prohibits an employer from discharging an employee for engaging in lawful activities outside of work. Earlier this week, in Coats v. Dish Network, No. 13SC394, the Colorado Supreme Court affirmed a lower court ruling that the state’s “lawful activities” statute does not … Continue Reading

Hiring Tests in the News

By Katharine Parker on April 15, 2015 Posted in Discrimination, Harassment and Retaliation, Hiring/Background Checks, Performance Management, Discipline & Termination, Workplace Policies and Procedures

A front page article in today’s Wall Street Journal highlights the growing use of pre-employment personality and psychological testing to screen job candidates. These tests are designed to evaluate technical skills, ability to multitask, friendliness, customer service orientation, communication skills and the like. New test designs are based on the traits of employers’ most successful … Continue Reading

The Top 10 Trends in New Jersey Employment Law in 2014

By John Barry, Joseph O’Keefe, Matthew Engel and Daniel Saperstein on December 31, 2014 Posted in Accessibility & Accommodation, Discrimination, Harassment and Retaliation, Hiring/Background Checks, Leaves of Absences, Litigation and Arbitration, Performance Management, Discipline & Termination, Wage and Hour, Workplace Policies and Procedures

2014 was another busy year for developments in New Jersey employment law, including in ten key areas—whistleblowing, pre-employment inquiries/background checks, amendments to the Law Against Discrimination (“LAD”), LAD litigation, wage and hour, the Family Medical Leave Act, sick leave, states of emergency, arbitration, and “unemployment discrimination.” Read our Top 10 newsletter to learn more about … Continue Reading

In The Eleventh Circut, Employers Can Terminate “Protected” Employees For Poor Performance And Violation Of Company Policy

By Allan Weitzman and Jurate Schwartz on December 9, 2014 Posted in Discrimination, Harassment and Retaliation, Leaves of Absences, Litigation and Arbitration, Performance Management, Discipline & Termination, Workplace Policies and Procedures

On December 4, 2014, the U.S. Court of Appeals for the Eleventh Circuit upheld summary judgment in favor of an employer against a pregnant employee who had requested FMLA, who was told by her direct supervisor “that [her] pregnancy was affecting [her] effectiveness” and who had complained about this to the employer’s Ethics Hotline. In … Continue Reading

FCRA Preempts Tortious Interference Claim, Says NJ Court

By Daniel Saperstein and Joseph O’Keefe on October 21, 2014 Posted in Hiring/Background Checks, Performance Management, Discipline & Termination

The Fair Credit Reporting Act (FCRA)—a federal law that regulates the collection and use of “consumer information”—covers employers who solicit third-party vendors known as consumer reporting agencies (CRAs) to run background checks on applicants and employees. The statute specifically contains a provision that bars state law claims against employers who “furnish information” to CRAs. In … Continue Reading

Colorado Supreme Court Set To Decide Seminal Drug Testing Case

By Daniel Saperstein and Katharine Parker on October 20, 2014 Posted in Discrimination, Harassment and Retaliation, Hiring/Background Checks, Performance Management, Discipline & Termination, Workplace Policies and Procedures

As reported by Joe Palazzolo of the Wall Street Journal (subscription required), Colorado’s Supreme Court recently heard arguments on whether an employer can lawfully terminate an employee for off-the-job use of medical marijuana. The case is Coats v. Dish Network, L.L.C. The plaintiff, Brandon Coats, a quadriplegic licensed by the State of Colorado to use … Continue Reading

Supreme Court Finds Severance Payments are Subject to FICA

By Elizabeth M. Mills, Nathan Bentley and Robert Projansky on March 25, 2014 Posted in Performance Management, Discipline & Termination, Workplace Policies and Procedures

On March 25, 2014, in a decision highly anticipated by employers, the U.S. Supreme Court held unanimously that certain severance payments paid to employees who were involuntarily terminated were taxable wages for purposes of the Federal Insurance Contributions Act (FICA). United States v. Quality Stores, Inc., et al., No. 12-1408 (U.S. Mar. 25, 2014). The … Continue Reading

Okay to Terminate Employee for Violating No-Alcohol Provision of Return to Work Agreement, Says Third Circuit

By Allison Martin, Daniel Saperstein and Joseph O’Keefe on November 19, 2013 Posted in Discrimination, Harassment and Retaliation, Leaves of Absences, Litigation and Arbitration, Performance Management, Discipline & Termination, Workplace Policies and Procedures

The U.S. Court of Appeals for the Third Circuit affirmed that an employer may discharge a driver sales representative who suffers from alcoholism for violating a return to work agreement (RWA) that prohibits the use of drugs or alcohol in Ostrowski v. Con-way Freight, Inc., No. 12-3800, 2013 WL 5814131 (3d Cir. Oct. 30, 2013). … Continue Reading

Employer Must Prove Indefinite Leave Is Undue Hardship Under NYCHRL, Says New York’s Highest Court

By Allan Weitzman, Marc A. Mandelman, Katharine Parker, Joshua Stein and Fredric Leffler on October 18, 2013 Posted in Accessibility & Accommodation, Discrimination, Harassment and Retaliation, Leaves of Absences, Litigation and Arbitration, Performance Management, Discipline & Termination, Workplace Policies and Procedures

The New York State Court of Appeals’ recent holding in Romanello v. Intesa Sanpaolo, 2013 N.Y. LEXIS 2755; 2013 Slip Op 6600 (N.Y. Oct. 10, 2013), now makes it more difficult for employers covered by the New York City Human Rights Law (Administrative Code of City of NY § 8-107[1][a]) (“NYCHRL”) to terminate employees who … Continue Reading

Release of 2012 Advice Memo Pulls Together Principles Applied by the NLRB in Evaluating Employer Social Media Policies

By Allan Weitzman, Scott Faust, Ronald Meisburg, Mark Theodore, Marc A. Mandelman, Michael Lebowich, Katharine Parker, Fredric Leffler and Bernard M. Plum on July 24, 2013 Posted in Performance Management, Discipline & Termination, Workplace Policies and Procedures

A 2012 Advice Memo from the National Labor Relations Board’s General Counsel, which was publicly released two weeks ago in response to a Freedom of Information Act request, addresses a number of hot social media topics affecting the workplace. This alert takes a closer look at the Advice Memo, which concludes that portions of Giant … Continue Reading

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