The Fourth Circuit returned to this issue last week, and engaged in quite a bit of statutory analysis before concluding that an employee who complained about her supervisor could sue for retaliatory termination.  In Minor v. Bostwick Laboratories, an employee asked for a meeting with the company’s head to inform him that her supervisor regularly altered employees’ timesheets to erase overtime hours. A few days later she was terminated, the employer citing her inability to get along with her supervisors.

The Fourth Circuit now allows the suit to go forward.  The difficulty with the conclusion comes with the language of the depression-era law, which provides for protection for an employee who “files” a complaint.  The Fourth Circuit’s decision makes sense given the purpose of the law.  Employee advocates point out that to deprive employees of protection when they complaint internally gives an incentive to employers to fire complainers before they go to the outside agency.  On the other hand, to require an employee to complaint externally (as with many whistle-blower type claims) encourages people to make complaints to government agencies whenever they see a potential violation.  Employers have a major incentive to avoid problems, if a discussion and investigation could cure the issues before they become a federal case.

The EEOC recently announced a long-term plan to increase its enforcement muscle even more.  The original idea behind the EEOC and the mandatory administrative filing was to work out disputes quickly, and give the EEOC the information needed to identify and root out discrimination by taking direct enforcement action.  With more than 110,000 charges of discrimination filed in the last two years, though, the EEOC has to allocate its resources to maximize the impact.  It promises to take some individual cases, but to increase the number of systemic discrimination cases as well.

The strategic plan is still being drafted; the EEOC hopes to finalize it by September.  Any comments on the plan are due by tomorrow, and can be made by email, to strategic.plan@eeoc.gov .

On the other hand, while employees thought that workplace ethics was on the decline, they observed less misconduct overall.  Some believed that wrongdoers were laying low during the recession.  The center predicted that “as the economy gets better – and companies and employees become more optimistic about their financial futures – it seems likely that misconduct will rise and reporting will drop.”

Though it would seem that misconduct would increase during difficult economic times, not all misconduct is designed to increase profits.  The Center shows that the incidence of misconduct observed by employees rises and falls with the stock market.  The study suggests that employees are more careful when their job stability is more fragile to avoid sexual harassment and other misconduct.

Another finding focused on people who actively used social networking.  The report showed that they report more negative experiences in their workplaces, and were more likely to be retaliated against.  At the same time, they “show a higher tolerance for certain activities that could be considered questionable.”

The report strongly recommends that employers improve their commitment to ethics programs, end retaliation, and bond with active social networkers, who are more likely to witness misconduct, and generally to say positive things on social networking sites.

The posting requirement has created a firestorm among employers.  It is designed to overcome the anti-union environment.  Some employees believe that they have no right to talk among themselves about the conditions of the workplace, and that some workplaces are non-union, and they have no right to try to change it.

The first postponement required the poster to be on employer memo boards by January 31.

As of now, the poster must be used by April 30, 2012.  The rule is pending a court challenge to the requirement, so further postponements or even a withdrawal of the requirement could occur.

Courts have refused to get involved in disputes over the firing of a church’s pastor, invoking the “ministerial exception,” adopted by the Supreme Court in this decision.  The gray areas involving other employees of religious institutions led to subtle rules.  The Supreme Court sweeps a lot of that away with this decision.  The teacher in this case was “called” to her faith, and counted as a religious minister, though her religious duties at this school were minor.  She had a special diploma and commissioned by her congregation’s vote.  Other teachers who were not “called” performed the same functions, but because of ther status as a commissioned minister, the Court   said it would not decide whether her termination violated federal law.  It therefore refused to consider the school’s argument that she was fired for violating church policy of resolving disputes internally, and not through courts.  The Supreme Court stopped short of requiring a reason for the firing; it says that federal courts are constitutionally forbidden from questioning such terminations.

The study does not delve into the personal costs of the lack of job prospects for so many months.  But the International Monetary Fund tackled the “human cost” of long-term recessions, concluding that some of the advanced economies with relatively high incomes were the most affected.  Oddly, the United States suffered a large increase in the number of unemployed people, while Germany and Japan did not.  The study traces the likely lingering effects, from worker discouragement to lifelong diminishing earnings.  These in turn lead to negative health outcomes, including stress-related illnesses and the health implications of losing health insurance.

An interesting component of instability focuses on social cohesion.  Data from around the world supports the conclusion that the “personal joblessness experience translates into negative opinions about the effectiveness of democracy and increases the desire for a rogue leader.”  On a more personal scale, the loss of a job affects one’s ability to interact with co-workers on the job; at any place that requires cash; and any time one’s personal sense of worth is so attached to being employed that old friends or haunts are avoided.  Further, the additional burden on younger workers delays their independence.

The upshot is that people who became unemployed in the summer are able to move on to the emergency benefit program once their 26 weeks elapse.

The social security payroll tax cut was also extended for two months.  According to the Washington Post, the tax cut saved the average household $900 last year, but worries about social security’s solvency and independence increased with the move to lenghtn the tax cut.

The intermediate appellate court reversed the jury verdict, leading to an appeal to the highest court.

The Court of Appeals rejected the employer’s efforts to have the court disregard the comparisons with her male counterparts.  Giant complained that the four men identified by the plaintiff were not sufficiently similar, and therefore their superior treatment could not support a sex discrimination claim.  The Court disagreed.  The plaintiff’s failure to identify a man with the same supervisor who had a gender-specific ailment that caused him to be late or absent, and that was not subject to a Department of Transportation physical examination, did not doom her case.   There will always be differences between two employee’s situations. Instead, it is enough to identify a male comparator whose treatment is enough to cast suspicion on the employer’s stated reason for requiring the medical exam.

The opinion also rejected the employer’s appeal of the retaliation verdict.  The decisionmakers at Giant denied knowing that Ms. Taylor had filed a discrimination claim, and therefore, they said, her firing could not have been in retaliation for her filing.  The employee produced evidence that the discrimination claim was transmitted to Giant’s human resources department, and that an employee had knowledge and had taken action to try to mediate the claim.  The court said that the jury could have disbelieved the denials by other Giant employees that they did not know of the filing.

Although the court decided that New Jersey law applied, according to the parties’ contract, it also noted that Maryland law would not have given the employee her unvested stock options, since that is all she bargained for.  In other words, this deferred compensation plan was designed to leave a lot of the compensation on the table, unless someone stayed with the employer for many years.

This decision does not bind a Maryland court from making a contrary decision, but to date these unvested benefit issues have not gone well for employees.

Second, the law clarifies that a person’s military status supports a claim of hostile work environment.  Hostile work environment based on sex, race, and national origin, among other things, violate the country’s civil rights laws, based on court recognition that a hostile work environment changes the “terms and conditions” of employment..  But recently a federal court refused to recognize a hostile work environment based on veteran or military status.  Now military status is clearly entitled to protection from harassment.

With veterans suffering a much higher than normal unemployment rate, this law’s incentives may help returning military personnel reintegrate into civilian life.