She showed up to work one morning, scanned her badge, and nothing happened. That’s allegedly how a 10-year employee learned she’d been fired while undergoing chemotherapy.

TL;DR: The EEOC sued a turkey processing employer, alleging it violated the ADA by refusing to accommodate an employee undergoing breast cancer treatment and then firing her under its attendance policy for missing shifts during chemotherapy. The complaint highlights how outsourcing leave administration to a third-party vendor doesn’t insulate employers from ADA liability.

📄 Read the EEOC Press Release

Fired During Chemo for Missing Shifts During Chemo

According to the EEOC’s complaint, the employee worked at the employer’s North Carolina processing facility for about a decade before being diagnosed with breast cancer in August 2023.   She contacted the employer, with her daughter translating from Haitian Creole, to disclose her diagnosis and request leave for chemotherapy treatments.  The employer allegedly told her to contact its third-party benefits administrator.

That’s where things supposedly fell apart. The EEOC alleges the third-party administrator never actually opened a leave request.  Instead, the employee and her daughter were shuffled between the administrator’s Supplemental Health Benefits Department and its Leave Management Department without anyone processing the leave.  Meanwhile, the employee racked up attendance points for every chemo-related absence, even after submitting doctor’s notes.

When the employee returned to work on September 5, 2023, the employer allegedly handed her a final attendance warning.   She worked the next day, missed several more shifts for chemo between September 7 and 11, and was removed from the schedule on September 11.  The employer fired her on September 13, but according to the complaint, nobody told her.  She found out on September 18 when her badge wouldn’t scan.   An HR representative then confirmed the termination and, per the complaint, rejected another doctor’s note on the spot.

The EEOC filed suit in the Eastern District of North Carolina, alleging two ADA violations: failure to provide a reasonable accommodation and termination because of a disability.

The Vendor Did the Paperwork. The Employer Owns the Liability.

The EEOC’s position here is blunt: hiring a third-party administrator to handle leave does not transfer the employer’s ADA obligations.  The complaint alleges the employer “washed its hands” of the situation and left a non-English-speaking employee with cancer to navigate a vendor’s claims process alone.  As the EEOC’s regional attorney put it, “Even when an employer hires a third-party benefits administrator, the employer remains responsible for complying with anti-discrimination law.”

If the allegations hold up, employers relying on similar vendor setups should take notice. Having a process on paper is useless if employees who need leave cannot actually use it.

Practical Steps for Employers Right Now

Vendor oversight is an ADA compliance obligation, not an HR preference. If your third-party leave administrator is the front line for accommodation requests, you need a mechanism to confirm those requests are actually being processed. Build periodic audits of open and denied claims into your normal HR and legal workflow

Attendance policies need an accommodation carve-out that works in practice. A no-fault attendance point system is not inherently unlawful, but it becomes a problem fast when disability-related absences are counted the same as unexcused ones. The EEOC specifically flagged the employer’s failure to exempt the employee’s chemo absences from its point system.

Language barriers multiply ADA risk. The employee here spoke almost exclusively Haitian Creole.  According to the complaint, the employer relied on bilingual coworkers as informal translators and did not ensure non-English-speaking employees understood its leave and accommodation processes.  If your workforce includes employees with limited English proficiency, your interactive process needs to account for that, or it isn’t really interactive.

Termination notice itself can compound damages. The allegation that the employee was never told she was fired, and discovered it only when her badge failed, is the kind of fact that resonates with juries.  Even if your termination decision is defensible, the method of communicating it can take on a life of its own.

This case hasn’t been decided, and the employer will get its say. But the EEOC’s theory here, that outsourcing leave administration without maintaining oversight creates ADA exposure, is one that applies to every employer with a third-party benefits vendor. If you haven’t stress-tested that relationship recently, this complaint is a good reason to start.

Three administrations, multiple rules, and still no settled federal standard on joint employment. The DOL’s new proposed rule is the latest attempt to end that uncertainty.

TL;DR: The U.S. Department of Labor has proposed a new rule establishing a single nationwide standard for determining joint employer status under the FLSA, FMLA, and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The proposal sets out separate analyses for “horizontal” and “vertical” joint employment, adopts a four-factor test for vertical scenarios, and explicitly identifies business practices — including franchisor relationships, shared safety policies, and quality control standards — that do not, on their own, create joint employer liability. The 60-day comment period closes June 22, 2026.

📄 Read the proposed rule | Summary | Q&A

Five Years Without a Rulebook

Since the Biden administration rescinded the 2020 joint employer rule in July 2021, the Department of Labor has had no generally applicable FLSA regulation on joint employment. According to the DOL, its investigators have been applying a vertical joint employment standard consistent with applicable circuit precedent — which varies substantially across the federal circuits. The horizontal standard, by contrast, reflects the Department’s longstanding enforcement policy and is less of a departure from current practice.

If finalized, the rule would govern how DOL investigators assess joint employer status nationwide under the FLSA, FMLA, and MSPA — all of which share the same statutory definitions of employment. Courts are not required to defer to the DOL’s interpretation, but a well-reasoned final rule may influence judicial analysis over time.

Vertical vs. Horizontal: Two Different Questions

The proposal distinguishes between two structurally different joint employment scenarios. In horizontal joint employment, an employee works separate hours for two employers in the same workweek, and the question is whether those employers are sufficiently associated to be deemed joint employers. Sharing a vendor or being co-franchisees of the same franchisor is not, by itself, enough.

In vertical joint employment — the scenario that generates most of the litigation — a single employee works one set of hours that simultaneously benefits two entities, such as a staffing agency client or a general contractor above a subcontractor. The rule proposes a four-factor test for vertical cases: whether the potential joint employer (1) hires or fires the employee; (2) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (3) determines the employee’s rate and method of payment; and (4) maintains the employee’s employment records. A unanimous finding on all four factors in either direction establishes a “substantial likelihood” on joint employer status.

The proposal also clarifies that reserved control — a contractual right to supervise or discipline that is never actually exercised — carries less weight than control that is actually practiced.

What Won’t Make You a Joint Employer

This is the part most employers will want to bookmark. The proposal explicitly identifies business practices that, standing alone, do not make joint employer status more or less likely: requiring anti-harassment policies or background checks through a contract, providing a sample employee handbook to another employer, offering an association health plan, participating in a joint apprenticeship program, operating as a franchisor, and imposing quality control standards to protect brand reputation.

These carve-outs give companies operating through franchisees, subcontractors, and staffing arrangements meaningful clarity that routine brand protection and compliance coordination won’t automatically drag them into joint employer territory.

These changes represent a genuine shift from the 2020 rule, and employers with complex business structures should map their relationships against the new four-factor framework before the final rule takes effect.

What Employers Should Think Through Now

The four-factor test rewards documentation of actual practice, not just contracts

Because reserved control matters less than exercised control, a franchise agreement that reserves the right to supervise employees is less relevant than whether a franchisor actually directed the day-to-day work. Employers should document who actually makes hiring, scheduling, and pay decisions — not just what the contract says.

Staffing agency and subcontractor arrangements face the most scrutiny

Vertical joint employment is where the real exposure sits. If a client employer’s personnel routinely set schedules, approve timesheets, or direct daily tasks for workers placed by a staffing agency, all four factors point toward joint employment. Audit those arrangements now and clarify the division of supervisory authority before the rule finalizes.

The FMLA alignment creates new compliance math for secondary employers

Because the proposal aligns the FLSA vertical analysis with the FMLA, an employer that qualifies as a vertical joint employer under the four-factor test may also need to count jointly employed workers toward FMLA coverage thresholds and potentially bear job restoration obligations. The overlap is not automatic, but it requires a closer look at arrangements where one employer supplies workers to another.

The comment period closes June 22, 2026. If your business model depends on franchising, staffing agency relationships, or subcontracting, this is one proposal worth submitting comments on — because the final rule will set the enforcement framework investigators will use.

TL;DR: A legal assistant alleged that a law firm partner created a hostile work environment under Title VII after telling her, a Black woman, “Lincoln may have freed the slaves, but I’m keeping you.” The Eleventh Circuit affirmed dismissal, holding that the single remark — however offensive — did not rise to the level of severe or pervasive harassment required to state a hostile work environment claim.

📄 Read the opinion

A Partner Said What?

According to the complaint, a law firm partner called a Black legal assistant into a closed-door meeting and told her: “Lincoln may have freed the slaves, but I’m keeping you.” The firm’s own follow-up email acknowledged the incident “should never have happened” and that the partner “is accepting responsibility for her statement.” The employee was reassigned to a different attorney and moved to a cubicle farther from the partner’s office.

She sued the firm and the partner for hostile work environment under Title VII, also pointing to a harassing email from a managing attorney and unspecified intrusions on her workspace. The district court dismissed the case. The Eleventh Circuit affirmed, and the plaintiff’s request to file a second amended complaint was denied as futile.

One Remark Doesn’t Make a Hostile Work Environment

To state a hostile work environment claim under Title VII, a plaintiff must plausibly allege harassment severe or pervasive enough to alter the terms and conditions of employment. A single incident can theoretically meet that bar, but only if it is extraordinarily severe. The Eleventh Circuit has consistently held that isolated offensive remarks, even racist ones, do not clear it on their own.

The court didn’t minimize what was alleged. It called the remark offensive. The firm called it offensive. But offense alone isn’t liability. The plaintiff’s remaining allegations — a vague “harassing” email and unidentified people intruding on her workspace — were too conclusory to add anything to the analysis. Beyond the single remark, she disclaimed knowledge of any “specific details” regarding further harassment. Because no additional facts could cure those deficiencies, a second amendment would have been futile, and the dismissal stood with prejudice.

The Corrective Action Did Exactly What It Was Supposed To Do

The firm’s response was swift and concrete: a written acknowledgment, an apology, reassignment to a different attorney, and physical separation from the partner. That response didn’t just reflect well on the employer — it was almost certainly part of why the case ended at the pleading stage. An employer that ignores a remark like this, or responds with a half-hearted “we’ll look into it,” is litigating a very different case.

Hostile work environment claims live and die on a number of factors, including the nature of the bad behavior and how the employer addresses it. When the only concrete alleged incident is a single remark and the employer responds immediately and specifically, the plaintiff faces a steep climb.

Four Things Employers Should Take From This

Speed and specificity of corrective action define your exposure. The firm didn’t just apologize — it reassigned the employee and physically separated her from the partner. Generic assurances that behavior “won’t happen again” are not the same thing. When a serious incident occurs, document exactly what you did, when you did it, and why each step was chosen. That record is your defense.

One incident isn’t automatically safe — context shapes severity. The appellate court recognized that a single extraordinarily severe incident could satisfy the hostile work environment standard. Courts have found isolated incidents actionable when they involved physical threats or conduct that went beyond words. A remark delivered in a closed-door meeting by a supervisor over a subordinate carries more legal weight than the same words in a different context. One-time events are not a blanket shield.

Partner-level harassment training isn’t optional. The alleged comment here should have been caught by any basic harassment training program. The firm survived, in part, because its corrective action was strong and the plaintiff’s additional allegations were thin. That combination won’t always hold.

The corrective action saved this employer. The alleged remark is a reminder of why it was necessary.

TL;DR: A security supervisor reported his manager for favoring female employees, then got fired days later over training failures and performance issues. The Tenth Circuit affirmed summary judgment for the employer because the employee couldn’t show the branch manager who fired him knew about the sex discrimination complaint, and without that knowledge, there was no causal link to support a retaliation claim.

📄 Read the opinion

The Complaint That Never Made It Up the Chain

The employee worked as a day-shift supervisor for a contract security company at an Oklahoma industrial facility. In early 2020, while the site manager was on leave, the employee told the branch manager and a client representative that the site manager gave preferential treatment to female employees.

Months later, a different employee filed a racial discrimination complaint against the site manager. During the investigation, the employee met with the HR vice president on June 10 and flagged his sex discrimination concerns again. The HR vice president told neither the site manager nor the branch manager what was said.

Simultaneously, the site manager and the employee clashed over mask compliance, COVID exposure protocols, and temperature-check training. The branch manager decided to fire the employee on June 16, citing training failures, performance problems, a client’s request for removal, and a missed Saturday training session. The Tenth Circuit affirmed summary judgment for the employer.

Knowledge Gap Breaks the Causal Chain

The branch manager was the undisputed decision-maker. He had no knowledge of the June 10 sex discrimination report. The HR vice president never told him. The employee never told him. No one did.

The employee tried two paths. First, direct retaliation: he argued the branch manager knew because the site manager probably told him. But evidence that two people were in “regular communication” about the employee’s performance doesn’t show they discussed the protected activity. Opportunity to share information, the Tenth Circuit held, is not a substitute for evidence that it was shared.

Second, he tried a cat’s paw theory, arguing the site manager harbored retaliatory animus and used the branch manager to get him fired. That failed too: the site manager had to know about the June 10 report for his motive to be retaliatory. No evidence.

The employee also raised pretext, arguing the termination reasons were fabricated. Without first establishing that the decision-maker knew about the complaint, pretext evidence doesn’t rescue the claim. Pretext might show the stated reason was false; it doesn’t show retaliation was the real reason.

Employers facing retaliation claims often spend their energy defending whether the termination reasons were legitimate. This case is a useful corrective: examine the knowledge element first, because without it, the pretext analysis never gets off the ground.

What Employers Should Bear in Mind

Compartmentalization during HR investigations creates a real evidentiary defense, but it cuts both ways

When HR keeps complaint disclosures internal and decision-makers remain unaware of protected activity, that separation can be outcome-determinative, as it was here. But compartmentalization isn’t always feasible; decision-makers often need to know about complaints to manage workflow and monitor for retaliation. The more useful lesson is documentation: record who was told what and when, so the employer can reconstruct the information chain if litigation follows.

Pre-existing documentation of performance problems is the cleanest defense available

Three of the five reasons cited for the firing predated the June 10 complaint: the mask incident, the COVID exposure reporting failure, and the ongoing training deficiencies. Those pre-existing issues are what made the termination defensible. Performance concerns documented before protected activity puts employers in a fundamentally stronger position than documentation assembled after the fact.

Cat’s paw liability depends on what the biased subordinate actually knew

A supervisor can try to get an employee fired for all kinds of reasons without triggering retaliation liability, as long as the supervisor wasn’t aware of the protected activity. A hostile relationship, even a fabricated termination reason, doesn’t prove the motive was retaliatory unless the connection to the protected activity is established. Personal animus and retaliatory animus are not the same thing.

Retaliation claims live and die on what the decision-maker knew. Everything else, the timing, the pretext, the subordinate’s bad motives, is noise without that foundation. Employers who understand that tend to build better records before terminations happen, not after.

Over 18,000 pest-control workers were allegedly barred from competing with their former employer for two years after leaving. The FTC says that’s 18,000 too many.

TL;DR: The FTC filed an administrative complaint against the parent company of Orkin and other pest-control brands, alleging that its blanket noncompete policy covering more than 18,000 employees violated Section 5 of the Federal Trade Commission Act. A proposed consent order accepted for public comment would prohibit the company from entering or enforcing noncompetes against most of its workforce and require it to notify current and former employees that existing agreements are void.

📄 Read the complaint | 📄 the FTC Chair’s statement | 📄 the proposed consent order

Everyone Signs. No Exceptions. No Negotiation.

According to the FTC’s complaint, the company had a standing policy: every newly hired employee, regardless of position or responsibilities, was required to sign a noncompete. That included pest-control technicians and customer service representatives, the bulk of the workforce. The alleged terms prohibited work in the pest-control industry within 75 miles of the employee’s former location for two years post-employment. Employees often had little time to review the agreement, received no extra compensation for signing, and in some cases were handed the document in the field following a company acquisition.

When workers left, the company allegedly sent hundreds of cease-and-desist letters and filed lawsuits to enforce the agreements. The complaint notes that former employees often lacked the resources to fight back.

Why the Commission Says the Agreements Don’t Pass the Test

The FTC charged a violation of Section 5 of the Federal Trade Commission Act (FTC Act), which prohibits unfair methods of competition. The commission’s analysis found little procompetitive justification to offset the anticompetitive harm. The company’s pest-control methods are publicly available online. Technicians don’t access genuinely proprietary information. And narrowly tailored non-solicitation agreements, the commission concluded, would adequately protect legitimate customer relationship interests without blocking where former employees can work.

The proposed consent order, not yet final, would bar noncompetes for essentially the entire non-executive workforce. Senior leaders eligible for equity grants would remain covered. The company did not admit liability as part of the proposed settlement.

What This Means for Employers Using the Same Playbook

The FTC’s concern isn’t that noncompetes exist. It’s that a blanket policy applying identical restrictions to a front-line tech and a senior executive signals an absence of individualized analysis, and that absence undercuts the procompetitive justification that might otherwise save the agreement.

The “confidential information” rationale requires actual confidential information. Publicly available training materials and standard service methods didn’t clear that bar here. Employers relying on the trade-secrets justification should audit whether employees subject to noncompetes genuinely have access to sensitive, non-public information.

Non-solicitation agreements are now the documented safer default for most workers. The consent order explicitly identifies them as a less restrictive alternative. For employers primarily concerned with protecting customer relationships, a well-drafted non-solicitation provides meaningful protection with far less FTC Act exposure.

Tiered agreements by role reduce risk company-wide. The order’s carve-out for senior leaders reflects the commission’s view that noncompetes can be justified in limited circumstances. Calibrating agreements to actual access to sensitive information, rather than applying one standard across all employees, is what separates defensible practice from what the FTC just challenged.

Blanket noncompete policies applied to an entire workforce are a target. Agreements tied to legitimate, specific business interests are far more likely to hold. The question is whether employers can actually show the difference.

The $11.5 million verdict against SHRM survived. Now the court’s explanation of why offers a sharper lesson than the verdict itself.

TL;DR: A federal court denied SHRM’s post-trial motions seeking to overturn or reduce an $11.5 million jury verdict for race discrimination and retaliation under Section 1981. The court upheld both the compensatory and punitive damages awards, finding the evidence supported the verdict and explicitly noting that SHRM, as an organization that trains employers on discrimination law, had clear notice that its conduct could expose it to a large punitive award.

📄 Read the opinion

The Verdict You Already Know About

In December, a Colorado jury awarded $1.5 million in compensatory damages and $10 million in punitive damages to a former SHRM employee who claimed her supervisor micromanaged her relative to white colleagues, retaliated after she complained, and set her up to fail as a pretext for termination. I covered the verdict and its lessons here. SHRM moved post-trial to have the verdict thrown out or the damages reduced. The court denied everything.

When “Equal Treatment” Looks Like Evidence of Guilt

The plaintiff complained that the newly imposed project deadlines were retaliatory. That same day, SHRM began drafting her termination paperwork.

Around the same time, the supervisor went to a white colleague who held essentially the same role and reported to the same supervisor. For the first time, the supervisor imposed a hard deadline on her too — urgent, inflexible, and out of character. The colleague described the supervisor as “red-faced, sweaty” and the conversation as unlike anything before: no flexibility, career repercussions threatened, a vague reference to “a larger context” the supervisor couldn’t share.

The plaintiff met her deadline. The white colleague missed hers. The white colleague kept her job. The plaintiff was terminated.

The court called the supervisor’s sudden pivot to the white colleague a “transparent post hoc attempt to concoct evidence of equal treatment.” More pointedly, the court wrote that “one could infer that management knew that they were in a pickle because [the plaintiff] had seen through their termination scheme and sought to concoct some evidence for SHRM’s benefit in a ham-fisted manner.”

The Part That Should Get HR’s Attention

The punitive damages analysis contains a finding that applies beyond this case. The court tied SHRM’s institutional expertise directly to the size of the award, writing that the “fundamental question is whether [SHRM] had reasonable notice that its conduct could result in such a large punitive award” — and concluded that “[i]f anyone knew the possibility of high potential punitive damages for employment discrimination and malicious retaliation, it was SHRM, which trains businesses on related issues including potential liability.”

That reasoning has a broader application. Employers with formal HR infrastructure, internal training programs, legal compliance teams, or professional credentials in the employment space face a higher punitive damages baseline when things go really wrong. For employers with formal HR programs, that baseline is higher than they may realize.

Three Things to Take From This Ruling

The case is heading to appeal. Some or all of these three points may survive it.

Termination timing that follows a complaint will define the case

SHRM drafted termination paperwork the same day the plaintiff raised a retaliation complaint. No performance evidence, however legitimate, fully neutralizes that sequence. When adverse action is contemplated or initiated near a protected complaint, document the decision-making process in real time — who decided, when, and on what basis — before the timing becomes the story.

Courts measure equal treatment by what happened before the complaint, not after

Equal treatment has to be the practice, not the response to getting caught. Courts and juries look at what was standard practice before the complaint was filed. If the baseline wasn’t even, the fix won’t hold.

HR expertise raises the floor on punitive exposure, not just the ceiling on competence

Formal training programs, HR certifications, and compliance infrastructure are assets in day-to-day operations — and may also be aggravating factors in litigation when conduct goes sideways. When the conduct is as egregious as it was here, an organization’s sophistication in employment law can dramatically increase the damages exposure. The court made that connection explicit.

SHRM is appealing. Stay tuned.

An employee told Social Security it was “impossible” for him to work, then filed an ADA lawsuit claiming he could perform his job with accommodations. The court tossed it on summary judgment.

TL;DR: A truck driver with Parkinson’s disease applied for total Social Security disability benefits, swearing under penalty of perjury it was “impossible” to work. He then sued his employer for ADA discrimination, hostile work environment, retaliation, and wrongful termination. The Eighth Circuit affirmed summary judgment for the employer, holding the employee failed to explain the contradiction between his SSA representations and his claim that he was a qualified individual who could work with accommodations.

📄 Read the opinion

From Informal Accommodations to a Formal Unraveling

The employee drove trucks out of South Dakota from 2017 to 2021. Diagnosed with Parkinson’s in late 2018, the employer accommodated him informally for over two years: lighter loads, no ladder climbing, a five-day workweek ending by 1:00 p.m., and trailer washouts handled by a third party.

A new terminal manager arrived in 2021 and formalized those accommodations. But friction followed. The employee was disciplined for running a stop sign and for a hauling infraction, the same one that earned a non-disabled coworker the same punishment. He reported “targeting and harassment.” HR investigated and found the concerns unsubstantiated. The manager told the employee he needed to do things “his way” or he’d get rid of him “one way or another.”

In August, the employee cleared out his truck, told a coworker he “was done with this F’ing place,” and didn’t come back. The employer accepted his resignation. The employee says he was fired. The court granted summary judgment to the employer, and the Eighth Circuit affirmed.

“Impossible to Work” and “Qualified Individual” Don’t Fit in the Same Sentence

Eleven days after walking off the job, the employee applied for total Social Security disability benefits. Under penalty of perjury, he stated it was “impossible” for him to work because he couldn’t “control [his] right hand, arm, right leg & foot” and reported “hallucinations & delusions” from his medication. The SSA approved his claim, finding him disabled as of August 7.

Applying for Social Security disability doesn’t automatically kill an ADA suit. The Supreme Court said as much in Cleveland v. Policy Management Systems Corp. But the employee here didn’t just claim a disability. He made specific factual representations that working was “impossible.” Under Cleveland, he needed to explain that contradiction. He never did.

His hostile work environment claim failed too. A smirk, unwanted afterhours phone calls, and discipline for actual safety violations are, in the court’s words, “ordinary tribulations of the workplace.” Retaliation failed because the four-month gap between protected activity and termination wasn’t close enough on its own to establish causation. And South Dakota doesn’t recognize a public policy exception for disability-based wrongful termination, so that claim hit a dead end.

This case gives employers a concrete tool. When an ADA plaintiff has also applied for Social Security disability, the specific language in that application, not just the fact of the filing, could be the most important evidence you have at summary judgment.

The Employer’s ADA Defense Playbook After This Ruling

SSA applications are discovery gold, but only when the language is specific

The legal framework lets employees claim Social Security disability and sue under the ADA at the same time. But factual representations, like calling work “impossible,” are different from legal conclusions about disability status. Discovery should focus on what the employee actually wrote in the SSA application, not just whether one was filed.

Parallel discipline neutralizes harassment claims faster than any brief

The employee was disciplined for a hauling violation, but a non-disabled coworker got the same punishment for the same infraction. That consistency killed the hostile work environment argument. When the same rules apply to everyone and you can prove it, routine discipline is very hard to recast as disability harassment.

Informal accommodations are a ticking clock

The employer here moved from informal to formal accommodations when the new manager arrived. That generated documentation of exactly what was approved and what was denied. Without it, this case becomes a credibility fight about what the employee was entitled to. If your company is running informal accommodations right now, formalize them before a dispute forces the issue.

The court didn’t break new ground here. It just reminded everyone that when you swear under penalty of perjury that you can’t work, a federal court is going to take you at your word.

An employee returned from his third round of FMLA leave and found a performance improvement plan waiting for him. That looks terrible. But a jury will never hear about it.

TL;DR: A manufacturing engineer was placed on a PIP immediately after returning from his third FMLA leave and later terminated. He sued for race discrimination, retaliation, and FMLA retaliation. The Eleventh Circuit affirmed summary judgment for the employer on all claims. Suspicious timing alone doesn’t establish pretext when the employer has legitimate, documented performance reasons, and the plaintiff couldn’t show the performance justification was false.

📄 Read the opinion

Three FMLA Leaves, a PIP on Return, and a Termination. Then Litigation.

The plaintiff, a Black man, began working for the employer at its aircraft assembly facility in Mobile, Alabama in 2019. After the employer learned he had an associate’s degree in applied sciences, it recruited him into a manufacturing engineer role. He took three rounds of FMLA leave. Immediately upon returning from the third, the employer placed him on a performance improvement plan. He was later terminated. The employer’s stated reason: poor performance tracked and documented across multiple trainers and scoring sessions going back months before the PIP was issued. The plaintiff sued for race discrimination and retaliation under Title VII and Section 1981, and for FMLA retaliation. The Eleventh Circuit affirmed summary judgment for the employer on all claims.

Suspicious Timing Is Not Enough. You Need More.

The timing of the PIP was the plaintiff’s strongest argument. The Eleventh Circuit acknowledged it: the court assumed he had established a prima facie case of FMLA retaliation precisely because the PIP came immediately upon his return from leave. But assumption of a prima facie case is not a win. It just shifts the burden.

Once the employer put forward a legitimate, non-retaliatory reason for the PIP and termination (poor performance), the burden shifted to the plaintiff to show that reason was false or pretextual. He couldn’t. No comparator employees who performed similarly and weren’t disciplined. No evidence the performance documentation was fabricated or inconsistently applied. No “convincing mosaic” of circumstantial evidence pointing to discrimination or retaliation.

Proximity is relevant, the court held, but it has to be paired with something else: falsity of the stated reason, inconsistent treatment, or other evidence of discriminatory intent. Without it, summary judgment stands.

Employers who document performance issues carefully and independently of protected activity are in a far stronger position when adverse action timing looks bad. The documentation is what converts a suspicious-looking PIP into a defensible one.

What to Lock Down Before the PIP Conversation

The date on the documentation is as important as what it says. Courts don’t just ask whether performance concerns existed. They ask when the employer first put them in writing. A performance record assembled after a termination decision, even if the underlying concerns were real, looks like justification-building rather than genuine management. The employer here survived because scoring sessions and trainer assessments went back months before the PIP. That chronology is what made the timing survivable. If your first written record of performance problems is dated the same week as the adverse action, you’ve handed the plaintiff a pretext argument.

Comparator management is a litigation decision you make before anyone is fired. Plaintiffs defeat summary judgment most often not by proving discrimination directly, but by showing a similarly situated employee outside the protected class was treated differently. Employers rarely think about comparators until litigation starts. Before issuing a PIP or termination, HR should identify who else in similar roles has faced comparable performance issues and verify the response was consistent. If it wasn’t, document why. Unexplained inconsistency is pretext evidence regardless of how strong the underlying performance case is.

A PIP that gets extended without clear criteria creates more risk than it resolves. This employer extended the PIP after the employee failed a final task assessment, which is defensible when extension criteria are objective and documented. The risk comes when extensions are open-ended or based on supervisor discretion without written benchmarks. Courts scrutinize those extensions as evidence the process was subjective or predetermined. If your PIP framework doesn’t specify in advance what triggers an extension versus a termination, you’re giving a plaintiff room to argue the outcome was decided before the process concluded.

Timing will always look bad when an employee is disciplined or terminated in close proximity to protected activity. That’s unavoidable. What’s avoidable is having nothing else in the record to explain it.

An engineer got fired for making offensive comments about his non-Christian co-workers, then sued for religious discrimination. There was just one problem: he wouldn’t show anyone the EEOC charge he filed.

TL;DR: A federal court in Texas granted summary judgment to a technology employer on an employee’s Title VII religious discrimination claim after the employee repeatedly refused to produce his EEOC charge of discrimination during discovery. The court applied the adverse inference rule, concluding that the charge’s contents must be adverse to the employee’s claim, and held that the employee failed to demonstrate he had exhausted his administrative remedies.

📄 Read the opinion

An Engineer’s Offensive Remarks Trigger Multiple HR Complaints

The employee worked as an engineer at a technology company. In the summer of 2022, several co-workers reported to HR that the employee was making offensive remarks targeting their non-Christian religious beliefs, in violation of the company’s code of conduct. An HR representative met with the employee, informed him of the complaints, and counseled him on expectations going forward.

The very next day, a third co-worker reported new offensive remarks. The company suspended the employee on August 18, 2022, pending an investigation. On September 6, 2022, HR informed the employee he was terminated, effective September 8.

The Missing EEOC Charge

The employee filed an EEOC charge and received a right-to-sue letter on May 1, 2023, then sued alleging religious discrimination and retaliation under Title VII and the ADEA. The court previously dismissed the retaliation and ADEA claims, leaving only the Title VII religious discrimination claim.

The employer raised failure to exhaust administrative remedies as an affirmative defense and asked for the EEOC charge at least four times during discovery, including in document requests, at the employee’s deposition, and in follow-up emails. The employee admitted under oath that the charge was in his possession. He never produced it.

When Silence Becomes the Strongest Evidence in the Room

The court turned to the adverse inference rule, citing the Supreme Court’s principle that “a factfinder may draw an adverse inference when a party fails to produce highly probative evidence that it could readily obtain if in fact such evidence exists.” The court walked through a hypothetical trial scenario: the employer would show four unanswered requests and deposition testimony confirming the employee had the charge, while the employee would offer nothing, not even testimony about the charge’s contents.

The court concluded that a reasonable factfinder could only determine that the charge’s substance was adverse to the employee’s religious discrimination claim, meaning its scope did not reach the claim asserted in the lawsuit. Summary judgment for the employer was granted.

The ruling is a clean illustration of what happens when a plaintiff’s litigation strategy is built on withholding rather than disclosure. Employers who pursue discovery aggressively and document every request put themselves in the strongest possible position to invoke this kind of defense.

Lessons from the EEOC Charge That Never Appeared

⚖️ Discovery compliance is a two-way obligation. Employees who file EEOC charges must be prepared to produce them in litigation. Employers should make formal, documented requests early and often, because each unanswered request strengthens the adverse inference argument.

⚖️ The failure-to-exhaust defense has real teeth at summary judgment. Pleading exhaustion gets a plaintiff past a motion to dismiss, but at summary judgment, the plaintiff has to back it up with evidence. When the charge itself is missing, the defense becomes dispositive.

⚖️ Prompt and documented responses to workplace complaints protect employers. This employer had a code of conduct, investigated the complaints, counseled the employee, and escalated to termination when the conduct continued. That sequence didn’t just support the termination; it made the employee’s discrimination theory harder to sustain.

Four requests. One sworn admission. Zero production. That’s a summary judgment gift-wrapped for the employer.

A police department ran a volunteer program that looked and felt a lot like a job, complete with uniforms, badges, ranks, performance reviews, and a paramilitary chain of command. Three young women in the program alleged sex discrimination and retaliation, got dismissed, waited over two years to file charges, and then sued under Title VII. The court shut it all down.

TL;DR: A federal court in Colorado granted summary judgment for Colorado city, holding that participants in its Police Department’s Explorer Program were not “employees” under Title VII because they received no meaningful remuneration, and that the plaintiffs’ claims were independently time-barred because they filed EEOC charges more than two years after the 300-day deadline expired.

📄 Read the decision

Volunteer Cops-in-Training Allege a Pattern of Sex Discrimination

The Explorer Program was a volunteer, educational program for young people ages 14 to 21 who were interested in law enforcement. Participants completed a training academy, attended biweekly meetings, wore uniforms, carried badges, received performance reviews, and operated within a paramilitary chain of command. They were not paid.

Three female participants, who joined between 2016 and 2018, alleged a pattern of sex-based discrimination: a male participant touched two female participants during a training exercise, dress code rules were enforced inequitably against women, one participant’s male supervisor retaliated against her for rejecting his romantic advances, and an advisor made what the plaintiffs characterized as a sexually harassing comment during a meeting. After the three women created a private group chat and Instagram page mocking other participants and advisors, they were suspended and ultimately dismissed from the program for violating its conduct and social media policies.

Two Years Late and Still Not Employees

The court disposed of the Title VII claims on two independent grounds.

First, the plaintiffs were not employees. Under the Tenth Circuit’s threshold remuneration test for unpaid workers, a plaintiff must show they received direct pay or indirect benefits that were “substantial or significant” and not merely incidental to the volunteer relationship. The court found that the benefits the plaintiffs identified, including uniforms, training, meeting space, mental health counseling, and civil service preference points for future job applications, were too incidental and conditional to clear that bar. The paramilitary structure, formal supervision, and disciplinary procedures went to control, not remuneration, and were irrelevant at this stage of the analysis.

Second, the claims were time-barred. The plaintiffs were dismissed in November 2019, and their appeals were denied in December 2019, meaning the 300-day EEOC filing deadline expired no later than October 2020. They did not file charges until December 2022. The court rejected their argument that a 2022 “ceremonial reinstatement,” which restored no actual benefits and required one plaintiff to immediately resign, constituted a constructive discharge that restarted the clock. The continuing violation doctrine did not apply either, because the dismissal was a discrete act, and the plaintiffs showed no new unlawful conduct between 2019 and 2022.

What This Means for Employers Running Volunteer Programs

The holding is a reminder that structure alone does not create an employment relationship under Title VII. But it also highlights how easily a well-organized volunteer program can start to look like one. Here is what employers should take away.

Audit Your Volunteer Benefits. If your volunteers receive benefits that look like employee benefits — pensions, insurance, tuition reimbursement, workers’ compensation — courts may have a harder time distinguishing them from actual employees. The more concrete and financially valuable the benefit, the closer you get to employee status.

Don’t Rely on “Volunteer” Labels. Courts look at substance, not titles. A program with ranks, uniforms, performance reviews, SOPs, and a chain of command looks like employment, even if it is not compensated. Document the educational and volunteer nature of these programs clearly.

Watch Your Deadlines, Even When They Help You. This employer won largely because the plaintiffs waited too long to file. But the underlying allegations, including unwanted physical contact, retaliatory discipline, and disparate enforcement of rules, are exactly the kind of facts that generate liability when claims are timely. Take complaints seriously the first time, regardless of whether the complainant is an employee or a volunteer.

Remember: Title VII Is Not the Only Game in Town. This decision turned on the federal threshold remuneration test, and the court declined to reach the plaintiffs’ claims under the Colorado Anti-Discrimination Act, dismissing them without prejudice. State anti-discrimination statutes may define protected relationships more broadly than Title VII, and some states extend coverage to volunteers outright. An employer that clears the federal bar may still face liability under state law.

Volunteer programs can offer tremendous value. But the more they resemble real jobs, the harder it gets to argue that the people in them are not real employees, and a court might not always agree with you.

An employee complained to HR about discrimination. About two and a half months later, the employer skipped progressive discipline, gave no warning, and fired her the same day over emails. Most people would expect that case to go to a jury. It didn’t.

TL;DR: An employee claimed race and sex discrimination and retaliation after being fired without warning just months after complaining to HR. The Fifth Circuit affirmed summary judgment because the employee could not produce evidence showing the employer’s reasons were false or a cover for discrimination or retaliation. Timing and disagreement with the employer’s judgment were not enough.

📄 Read the decision

A weekend schedule change. A Sunday church conflict. And apparently no one at the company thought to have a conversation about it.

TL;DR: According to a new EEOC lawsuit, an employer violated Title VII by changing an employee’s schedule to weekends, ignoring his religious objection, and effectively forcing him to resign. The alleged failure to engage in any accommodation dialogue, combined with a “take it or leave it” approach, is the entire case.

📄 Read the EEOC press release

A three-year weekday schedule allegedly became a weekend ultimatum

According to the complaint, the employee worked as a part-time security guard for about three years on a steady Tuesday-through-Thursday morning schedule. He allegedly performed well, received a raise, and maintained the needed certifications. Then, in February 2024, his supervisor changed the schedule to two 12-hour shifts on Saturday and Sunday.

That change allegedly created an immediate religious conflict. The employee, a Baptist deacon who attended church on Sundays, told his supervisor he could not work the new schedule for religious reasons. He then sent an email, copying HR, stating that he was accepting the schedule under protest because of his religious rights.

The EEOC says no one took ownership of the issue

According to the lawsuit, the supervisor did not ask follow-up questions, did not explore alternatives, and did not coordinate with HR about a possible accommodation. HR allegedly did not fix that problem. Instead, after the employee called HR and explained the Sunday church conflict, HR allegedly referred him back to the supervisor rather than engaging in any accommodation dialogue.

The EEOC also alleges that the company provided no form, no guidance, and no real process for requesting a religious accommodation. Meanwhile, the employee’s prior shifts allegedly were given to another guard. When the schedule was not changed back, the employee took leave and resigned rather than work the weekend shift.

Why this becomes a Title VII problem fast

Title VII requires employers to reasonably accommodate sincerely held religious beliefs unless doing so would create an undue hardship. The EEOC’s theory here is straightforward: once the employee raised a religious conflict, the employer allegedly did nothing meaningful to address it and instead forced a choice between church and a paycheck.

That is what gives the case its punch. The problem is not simply that the employer changed a schedule. The problem, at least as the EEOC tells it, is that the company responded to a religious objection with a shrug and a directive.

Where employers get burned

Religious accommodation requests do not have to sound formal to count. If an employee says Sunday work conflicts with church obligations, that should trigger a real process, not a handoff back to the same supervisor who made the change in the first place.

This is also a reminder that HR has to own these issues once they surface. A manager should not be freelancing accommodation decisions, and HR should not be acting like a switchboard operator. Someone has to ask questions, consider options, and document the analysis.

Finally, sudden schedule changes deserve more care when they collide with long-standing religious practices. If the company truly cannot accommodate the conflict, it needs a reasoned explanation. “Take it or leave it” is not that explanation.

What employers should do now

Train managers to recognize accommodation requests when they hear them. An employee does not need to say “religious accommodation” to trigger a response. A plain statement about a church conflict is enough.

Make HR responsible for the process. Once HR knows about a religious conflict, HR should drive the analysis, explore options, and document what happened. Sending the employee back into the field is how these cases get worse.

Pause before forcing a schedule change through. If an employee has worked a stable schedule for years and raises a religious conflict, stop and evaluate alternatives before treating the issue as a done deal.

Most religious accommodation cases are not lost on some exotic legal theory. They are lost because nobody at the company took the problem seriously enough to try to solve it.

This week, I’m taking three of my four kids to Toronto for spring break.

My boys picked Toronto because all four of the city’s pro sports teams are home this week. The Blue Jays, the Raptors, Toronto FC, and the Maple Leafs — fine, three major ones and the Leafs.

I picked St. Thomas. I lost.

My daughter couldn’t resist once she heard she’d never been to Canada. My other daughter has a different spring break schedule, so she’s sitting this one out. My wife is home alone right now. In my house. In silence. She has already texted me three times to say how nice it is.

We arrived today. Blue Jays host the Dodgers this afternoon. Leafs host the Capitals tonight. Raptors play the Heat tomorrow. Three games in two days. My boys are in heaven. I am in Toronto in April.

I’ll be blogging Thursday and Friday, so if anything entertaining happens — and with three kids in a foreign country, something will — you’ll hear about it here.

In the meantime, I need your help.

We’ve never been to Toronto. Between games, I want to make the most of the city. We’re not picky eaters — we mess with everything. Omakase and sushi, steak, street food, pizza, poutine. Toronto’s food scene is supposed to be legitimately world-class, and I’ve heard the Hockey Hall of Fame, the Distillery District, and Kensington Market are all worth a few hours.

But you know more than I do. If you’ve been — especially with kids — I want to hear from you. What’s worth the line and what isn’t? Any neighborhood worth exploring on foot? Any traps to avoid? Anything we absolutely cannot miss?

Send your recommendations to eric.meyer@pierferd.com. I’ll report back. My wife will not be checking in.

A new manager walks in, looks at a long-standing accommodation, and decides it’s over. The employee had been doing the job successfully for years. That’s where the risk starts.

TL;DR: According to the EEOC, a supermarket employee with a mobility impairment worked successfully for years with a walker and the ability to sit. A new store leader revoked that accommodation, allegedly refused to engage in the interactive process, pushed the employee toward leave, and ultimately terminated her. The case highlights a recurring ADA issue: whether an employer can unwind a proven accommodation without a strong, documented reason and still comply with its obligations.

📄 Read the EEOC press release

A working accommodation, undone by new management

According to the EEOC, the employee developed a mobility impairment that limited her ability to walk and stand. She used a walker and needed to sit periodically. Management approved those accommodations. She was reassigned to a self-checkout role and, with those adjustments, performed the job successfully for more than three years.

Then leadership changed.

The new store leader, allegedly working with HR, refused to continue the same accommodation. According to the EEOC, the manager rejected medical documentation, refused to allow sitting, and told the employee she could not work unless she could perform the job without restrictions. Instead of revisiting what had worked, the employer allegedly sent the employee home, directed her to request leave, denied that leave, and ultimately terminated her.

The EEOC claims the employee did not need leave at all. She was ready to work with the same accommodation that had already proven effective.

The legal theory isn’t complicated, the facts are

This is a straightforward ADA case: failure to accommodate and disability-based termination.

The real issue is practical. The EEOC’s theory focuses on whether an employer can revoke a previously granted accommodation, one that demonstrably worked, without engaging in the interactive process and without identifying a legitimate reason why the accommodation is no longer viable.

The ADA does not lock employers into permanent accommodations. Circumstances can change. Business needs evolve. Roles shift. But when the only apparent change is the decision-maker, that’s where risk creeps in.

If the EEOC’s allegations hold up, the exposure isn’t just the revocation. It’s the combination of revocation, refusal to engage, and steering the employee into leave she allegedly did not need.

When an accommodation has worked for years, it becomes part of the baseline. Undoing it without a clear, defensible reason looks less like a business decision and more like a breakdown in process. That’s where ADA cases gain traction.

What employers should be tightening up right now

1. Treat existing accommodations as part of the job’s operating reality

If an employee has successfully performed the role with an accommodation, that becomes strong evidence the accommodation is reasonable. Before changing course, document what has actually changed, not just who is now in charge.

2. Restart the interactive process, don’t skip it

A new manager is not a reset button. If there’s a concern about an existing accommodation, engage the employee, review medical information, and evaluate alternatives. Refusing to engage is often what turns a defensible situation into a lawsuit.

3. Be careful about pushing employees onto leave

Leave can be a reasonable accommodation. It can also create risk if the employee can work with an existing or modified accommodation. Forcing leave instead of allowing work is a recurring litigation theme.

4. Align HR and front-line decisions

The EEOC alleges HR supported the revocation. That alignment matters. When both management and HR move in the same direction without a solid process, it becomes harder to argue this was a one-off mistake.

5. Consistency across leadership changes counts more than you think

Transitions in leadership are where these cases often begin. If each manager applies a different rule to accommodations, the organization inherits the risk.

Closing thought

An accommodation that worked for years is evidence. Ignoring that evidence, especially without a fresh, documented analysis, is how routine workplace decisions turn into ADA claims.

Most paid sick leave laws protect employees who follow the rules. A D.C. federal court just illustrated what happens when one doesn’t, and why a written call-out policy is the difference between a defensible termination and extended litigation.

TL;DR: A Fox News producer sued under the D.C. Accrued Sick and Safe Leave Act after being fired for an absence he failed to report on time. He knew the night before he’d be out, told a coworker but not his supervisor, and didn’t call his boss until midday. The court held his conduct wasn’t protected. Paid sick leave laws, including New Jersey’s, condition protection on reasonable notice, and he didn’t give any. Fox News won summary judgment.

📄 Read the opinion

He Knew the Night Before. He Called After Noon. Then He Called His Supervisor a Lousy Manager.

The plaintiff had been a Capitol Hill producer at Fox News since 2018. In September 2022, he got the COVID vaccine, felt ill about a week later, and according to his own father said that Sunday night he “was going to have to call in sick” the next day. Monday morning he didn’t show up. A coworker texted him; he replied he was unwell and was told to call the supervisor. He went back to sleep and didn’t call until after 11:30 a.m.

The supervisor told him to take the day. The next day, she called to discuss the late notice. The plaintiff became defensive and asked her “How would you like it if I called you up out of the blue and told you you were a lousy manager.” The supervisor emailed him calling the conduct “absolutely unacceptable,” looped in Fox’s bureau chief, and the plaintiff was fired the next morning. He sued under the D.C. Accrued Sick and Safe Leave Act (Sick Leave Act), claiming the termination was retaliation for taking sick leave.

The Notice Requirement Isn’t a D.C. Quirk. It’s How Most Sick Leave Laws Work.

Paid sick leave laws now cover a majority of U.S. workers across more than 20 states and dozens of cities. Nearly all condition protection on reasonable notice. The D.C. Sick Leave Act requires notice “as early as possible, in advance of the paid leave.” New Jersey’s Earned Sick Leave Law (NJSL) uses the same structure: for unforeseeable absences, an employer may require notice “as soon as practicable,” but only if the employer has notified the employee of that requirement. No written policy, no enforceable notice standard. The protection is conditional on both sides.

Fox’s policy required notification “as soon as possible and no later than two hours after normal starting time.” The undisputed record showed the plaintiff knew Sunday night he was calling out, told his dad and a coworker, and waited until midday to tell his supervisor. The court rejected each argument: the supervisor’s statement that he “handled it appropriate in calling in sick” didn’t make the notice timely; the “emergency” exception didn’t apply because the illness was foreseeable; and the two-hours provision was an outer limit, not a safe harbor. Fox won summary judgment.

Three Things to Fix Before the Next Sick Day Call

Write down exactly when and how employees must report an absence.

Under D.C., New Jersey, and most other sick leave laws, protection turns on whether the employee followed the employer’s notice procedure. Specify who gets the call, by what method, and the hard deadline. Fox’s policy had all three, and that’s what the court applied.

Train supervisors not to inadvertently ratify late notice.

The supervisor here told the plaintiff he “handled it appropriate in calling in sick.” That comment nearly sank the defense. Letting an employee take a sick day and waiving a call-out violation are not the same thing.

Document the termination reason before the meeting happens.

Fox had HR-prepared talking points and a contemporaneous email describing the outburst. That paper trail gave the court a clean, non-retaliatory reason for the firing. Without it, the two-day gap between the sick day and the termination is a much harder story to tell.

Sick leave retaliation claims are cheap to file and expensive to defend. A written call-out policy won’t prevent the lawsuit. It determines whether you’re defending the merits or just trying to survive them.

One racial slur. One termination. Zero liability. The Third Circuit’s newest hostile work environment decision is a masterclass in what prompt employer action actually looks like.

TL;DR: A Black factory worker claimed his employer subjected him to a racially hostile work environment after a coworker used the n-word while talking to other employees about him. The Third Circuit affirmed summary judgment for the employer, holding that the single incident — combined with the employer’s swift termination of the offending coworker — did not rise to the level of severe or pervasive harassment required under Title VII and Section 1981. The disparate-treatment and retaliation claims also failed.

📄 Read the opinion

A Slur, a Firing, and a Lawsuit

The plaintiff, a Black man, worked the night shift at a packaging factory near Valley Forge, Pennsylvania. In the spring of 2020, a day-shift coworker used the n-word while talking to another employee about the plaintiff. The plaintiff wasn’t there — he heard about it later. He complained. The company suspended the offending coworker and fired him within a week.

Then, in May 2021, the plaintiff accumulated ten-and-a-half attendance points under the company’s policy that allows termination at nine. Five days later, the company fired him for it. He sued under Title VII and 42 U.S.C. § 1981, claiming race discrimination, hostile work environment, and retaliation.

The district court granted summary judgment to the employer on all claims. The Third Circuit affirmed.

Why One Incident — Even That One — Wasn’t Enough

The employer fired the offending coworker within a week of the complaint. That was the ballgame. When an employer responds promptly and the harassment stops, there’s no liability — and that’s exactly what happened here.

The court also compared the facts to a prior decision where a supervisor used the n-word directly in front of minority workers while threatening to fire them. That’s the scenario where the Third Circuit has found a single slur severe enough to support a hostile work environment claim. This case wasn’t close. The coworker who used the slur wasn’t a supervisor. The plaintiff wasn’t even present when it was said — he heard about it afterward. There were no threats. And a swastika scratched into a bathroom wall beneath a curse aimed at the company, not any minority group, didn’t move the needle — particularly since the plaintiff never complained about it.

One-and-a-half incidents, the court said, are hardly pervasive.

The Attendance Policy Held Up Too

On the disparate treatment claim, the plaintiff argued his firing was pretextual. The court wasn’t persuaded. He didn’t dispute that each absence and late arrival that generated attendance points actually occurred. He pointed to other employees who received leniency on attendance points, but some of those employees were the same race as him — undermining any inference of racial motive. He also offered videos of cars parked in handicapped spots without evidence about the drivers’ races, whether they were asked to move, or whether they were disciplined. That’s not pretext evidence. That’s speculation.

The retaliation claim failed on timing. The plaintiff’s two complaints about race discrimination came more than a year before his suspension and firing. The court cited circuit precedent holding that even a three-month gap, without more, can’t create an inference of causation. A year-plus gap with no evidence of intervening antagonism didn’t come close.

What Employers Should Take From This

This outcome didn’t happen by accident. The employer acted fast, documented everything, and enforced its attendance policy without exceptions it couldn’t explain.

• Respond immediately to harassment complaints. Investigate promptly and act decisively. The employer here suspended the offending coworker while it investigated, then fired him within a week of the complaint. Suspension isn’t the only option, but removing the offender from the workplace while you sort things out is a reasonable first step — and the speed of the ultimate response was what ended the hostile work environment analysis.
• Document every attendance point. The plaintiff couldn’t dispute that he was actually absent or late every time he earned a point. That’s the paper trail that wins at summary judgment.
• Apply your policies uniformly. The plaintiff pointed to employees who got leniency on attendance — but some of those employees were the same race as him. Inconsistent enforcement creates pretext arguments. Consistent enforcement kills them.

The n-word in the workplace is never a minor incident. But how an employer responds to it determines liability — and this employer’s response left nothing for a court to grab onto.

President Trump’s new executive order for federal contractors bans something called “racially discriminatory DEI activities.” Read the definition and you’ll find it’s just discrimination — conduct Title VII has prohibited for sixty years. What the order actually adds is a new enforcement mechanism, and that’s what federal contractors need to understand.

TL;DR: On March 26, 2026, President Trump signed an executive order requiring federal agencies to include a new clause in all federal contracts and subcontracts barring “racially discriminatory DEI activities,” defined as disparate treatment based on race or ethnicity in hiring, promotions, vendor agreements, program participation, and resource allocation. Violations can result in contract cancellation, suspension, debarment, and False Claims Act exposure, including whistleblower suits.

📄 Read the Executive Order

What the Order Actually Prohibits

The order defines “racially discriminatory DEI activities” as disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity’s resources. “Program participation” covers training, mentoring, leadership development, educational opportunities, clubs, and associations sponsored by the contractor. That’s discrimination. It was already illegal.

What the order adds is a new enforcement mechanism: contract consequences and False Claims Act (FCA) liability.

The False Claims Act Piece Is the One That Should Get Your Attention

The new contract clause declares that compliance is “material to the Government’s payment decisions” under the FCA. That language opens the door to qui tam suits — whistleblower lawsuits filed on the government’s behalf, with the whistleblower entitled to a share of any recovery. The order also directs the Attorney General to consider bringing FCA actions against violating contractors and to prioritize reviewing private suits as they come in.

FCA exposure goes well beyond losing a contract. A contractor facing a qui tam suit defends itself in federal court against treble damages and per-claim penalties. The financial stakes are significant.

The Subcontractor Problem

The clause flows down to subcontracts at every tier. Prime contractors must also report any subcontractor conduct that may violate the clause and take remedial action as the contracting agency directs. Federal contractors now have a compliance obligation not just for their own programs but for every subcontractor in their supply chain.

What Federal Contractors Need to Do Now

• Audit your DEI programs against the order’s definition. Review any program — mentoring, leadership pipelines, ERGs with exclusive membership, vendor diversity initiatives — to assess whether it involves race- or ethnicity-based eligibility or selection. Programs open to all employees regardless of race are in a different position than those that are not.
• Extend that review to your subcontractors. The compliance obligation flows down. Identify which subcontractors have programs that could be characterized as racially discriminatory DEI activities. At a minimum, know what’s in your supply chain before a contracting agency asks.
• Watch for the new contract clause. Federal agencies have 30 days to begin including it in contracts, and the Federal Acquisition Regulatory Council has 60 days to issue interim guidance. If you’re in procurement or contract renewal now, expect to see this language. Have legal review it before signing.
• Document your compliance reasoning. The order is narrow on its face, but enforcement priorities and agency interpretations will shape how broadly it reaches. Litigation challenging the order is likely. Record your compliance analysis now, while your thinking is current.

Federal contractors have been navigating anti-DEI executive orders since January 2025. This one adds FCA exposure and supply chain obligations that earlier orders did not.

I am an employment lawyer. I have spent over two decades helping employers avoid liability. Last week, I got a cease and desist letter. Against me.

TL;DR: I received a cease and desist letter demanding that I immediately stop using the name “The Employer Handbook.” After careful legal review, I am complying. The blog needs a new name, and I need your help picking one.

📄 Visit The Employer Handbook while the name still applies

Here’s What Happened

Last week, I received a cease and desist letter from the operator of a competing blog — I’m not at liberty to name it — asserting prior rights to the name “The Employer Handbook.” The letter was aggressive, detailed, and included several citations I had to look up. I was impressed, frankly.

I reviewed the demand carefully. Then I consulted with counsel. Counsel, in this case, being me. After weighing the applicable law, the strength of the opposing arguments, and my current appetite for litigation, I’ve concluded that the prudent course is to comply. The name goes. I just need a new one.

Names I Have Already Ruled Out

• The Handbook Formerly Known as The Employer Handbook. Legally safe. Typographically impractical.
• Eric Meyer’s Blog About Work Stuff. Accurate. Not inspiring.
• Not That Other Employer Handbook. My personal favorite. Counsel has concerns. Counsel is me, and I overruled myself.
• The FMLA Corner. Too narrow. Also, I’d have to write about the FMLA every single day and I’m not sure I have it in me.
• Hostile Work Environment. Taken. Also possibly a liability.
• The HR Compliance Corner. Almost certainly already taken. I didn’t check.

I keep coming back to one option: The Employee Handbook. I’ve been representing employers for over two decades. I have built a career on helping companies avoid liability, document performance issues, and terminate employees correctly. But if the cease and desist has forced my hand and the name is available — maybe this is the pivot. New name. New clients. I’ve heard employees have feelings too. I’m open to learning more.

What I Need From You

Unless you have a better idea. Send your suggestions to Eric.Meyer@pierferd.com. I’ll announce the winning name tomorrow.

I’ll announce the winning name tomorrow.

April Fools. The blog is keeping its name, I am keeping my clients, and The Employee Handbook is not happening. See you tomorrow.

The Third Circuit just predicted that New Jersey’s “reverse discrimination” rule is incompatible with the NJLAD. Federal courts in New Jersey are no longer applying it.

TL;DR: The Third Circuit predicted that the New Jersey Supreme Court would abolish the “Background Circumstances Rule,” the heightened burden imposed on majority-group plaintiffs in NJLAD discrimination cases, following the U.S. Supreme Court’s unanimous rejection of the rule in Ames v. Ohio Department of Youth Services. That prediction is binding on federal district courts in New Jersey. The Third Circuit then found that a white police officer had enough evidence of race and religious discrimination to go to trial after the borough passed him over for Police Chief.

📄 Read the decision

Playing on Phones While the More-Qualified Candidate Interviewed

The plaintiff had been with the department since 1995, rising to Deputy Chief and Officer in Charge. He applied for Police Chief.

During his interview, several council members were on their phones and one arrived 30 minutes late. Afterward, the Borough Administrator told him he “crushed it” and it was “a slam dunk.” The Mayor thought the plaintiff’s resume was “overwhelmingly better” and that the competing candidate was “definitely under-qualified.” A council member who voted against the plaintiff said he was “sure” the plaintiff was “more qualified” and called the decision “wrong.”

The Council promoted the other candidate anyway. At the swearing-in, a council member announced that the borough had just appointed “the first Muslim Police Chief, only the second in the State of New Jersey.”

In litigation, the defendants conceded they had “considered [the promoted candidate’s] race and religion” in making their decision. A council member testified it was “important to have a minority department head.” Another said part of his reason for supporting the promoted candidate was that “he’s a minority.” The Borough Administrator told the plaintiff the decision was “all about race.”

The Background Circumstances Rule Is Dead in Federal Court

Under New Jersey law since 1990, majority-group plaintiffs bringing NJLAD discrimination claims faced a heightened burden: they had to show they were victimized by an “unusual employer who discriminates against the majority.” The district court applied that rule and dismissed the plaintiff’s NJLAD claim.

The Third Circuit reversed. After the U.S. Supreme Court unanimously struck down the federal version of this rule in Ames v. Ohio Department of Youth Services, the Third Circuit predicted the New Jersey Supreme Court would follow. The NJLAD and Title VII use identical text. Both protect “any” person from discrimination. A rule that imposes extra burdens on majority-group plaintiffs is incompatible with that language. A concurring opinion went further, concluding the rule likely violates the Equal Protection Clause outright.

With the Background Circumstances Rule gone, the plaintiff’s evidence was more than enough to send his NJLAD and Section 1983 claims to trial.

What NJ Employers Need to Do Right Now

The Background Circumstances Rule has shielded some employment decisions for 35 years. In federal court, that shield is gone. State court is a different story for now, but the writing is on the wall.

Lock down your promotion documentation. The defendants’ concession that they “considered [the promoted candidate’s] race and religion” helped get this case to a jury by itself. Document legitimate, specific, non-demographic reasons for every contested employment decision before it is made, not after.

Advise managers on what diversity remarks cost in litigation. Celebrating a first-ever minority hire at a public ceremony is deposition fodder. Comments about the value of minority leadership can be framed as “code words” for discriminatory intent. Brief decision-makers accordingly.

Treat majority-group discrimination complaints with the same rigor as any other. In federal court, a white employee alleging NJLAD race discrimination now faces no heightened threshold. Investigate and document these complaints with the same rigor applied to any other claim, regardless of which court they land in.

The New Jersey Supreme Court has not yet ruled, so the Background Circumstances Rule technically survives in state court. But federal district courts in New Jersey are bound by this decision, and the state court window is closing. Start adjusting your processes now.

TL;DR: An IT employee placed on a three-month performance improvement plan that she successfully completed did not suffer an adverse employment action under the ADEA. The First Circuit, applying the Supreme Court’s 2024 decision in Muldrow v. City of St. Louis, held that a PIP constitutes an adverse action only if it actually changes the terms or conditions of employment — and this one didn’t. The court also rejected the employee’s constructive discharge claim, finding that quitting ten months after finishing the PIP, with no one telling her to leave and no evidence of intolerable conditions, did not amount to a forced resignation.

📄 Read the First Circuit’s decision

She signed a severance release, collected her benefits, and then sued anyway. The Sixth Circuit just explained why that didn’t work – and why the employer’s paperwork made all the difference.

TL;DR: The Sixth Circuit affirmed summary judgment for an employer after finding that a former employee’s severance release was knowing and voluntary under all five factors the court applies, rejecting her claims of racial discrimination, gender discrimination, retaliation, and hostile work environment. The decision is a practical checklist for any employer that uses severance releases.

📄 Read the opinion

The Release That Held

The employee was laid off in June 2023 along with other employees of a chemical company. The employer sent her severance documents on June 1, advising that the release could not be signed until her separation date but that she had 45 days to consider it and 7 days to revoke after signing. The release advised her to consult an attorney before signing. The front page was titled “TERMINATION GENERAL RELEASE.” She signed it on or shortly after her termination date.

She later sued for racial discrimination, gender discrimination, retaliation, and hostile work environment. The employer moved for summary judgment on the ground that the signed release barred all claims. The district court agreed. The Sixth Circuit affirmed.

Five Factors. Five Wins for the Employer.

The Sixth Circuit weighs five factors to determine whether a release was knowing and voluntary. The employer cleared all five:

1. Experience, background, and education. The plaintiff held a master’s degree and had years of professional experience – sufficient to understand what she was signing.
2. Time to consider the release. She had 45 days to review and 7 days to revoke after signing. She didn’t use either window, but the court was clear: failing to take advantage of adequate time doesn’t make the time inadequate.
3. Clarity of the release. The release unambiguously covered all claims relating to her employment, including federal and state discrimination claims. The court found it left no room for doubt.
4. Adequacy of consideration. Severance benefits and medical coverage were adequate consideration – and she did not argue otherwise.
5. Totality of the circumstances. She identified no action the employer took to pressure her. Her signature created a strong presumption she understood what she was signing.

She also argued the release was an unconscionable adhesion contract – but forfeited that argument by not raising it below.

Employers outside the Sixth Circuit should verify their own circuit’s standard, but the steps that made this release hold up are sound practice anywhere.

Steps to Take Before Your Next Layoff

• Label your release as a release. “Separation Agreement” and similar labels invite challenges. Call it what it is.
• Give employees meaningful review time. Forty-five days and a 7-day revocation period are required under the ADEA for group layoffs involving employees over 40. Otherwise, the ADEA requires that employees over age 40 be given up to 21 days to consider the agreement. For everyone else, there is no statutory minimum, but more time is harder to challenge.
• Include language advising employees to consult an attorney. It’s one sentence, and it does significant legal work.
• Let the document speak for itself in the termination meeting. Verbal representations about what the release does or doesn’t cover create problems the written document can’t fix.

Note: If your RIF involves employees over 40, the ADEA’s Older Workers Benefit Protection Act (OWBPA) imposes additional requirements for a valid waiver – including the 45-day review period and 7-day revocation window used here. The EEOC has published detailed guidance on compliant severance waivers worth reviewing before your next layoff.

A signed severance release is only as good as the process behind it. This employer built one that held up. Not every employer does.

According to the EEOC, a company told its staffing agencies not to send women for laborer jobs because women would “distract” male workers. When the EEOC sued, the company turned around and sued the staffing agencies too. A federal court just explained why that doesn’t work.

TL;DR: A federal court dismissed with prejudice a Title VII defendant’s third-party indemnification claim against its staffing agencies, holding that Title VII preempts any attempt by an accused employer to contractually shift its discrimination liability to vendors – particularly where the employer allegedly instructed those vendors to help it discriminate in the first place. The underlying sex discrimination claim against the employer remains pending.

📄 Read the opinion

What the EEOC Alleges

The employer disposes and recycles PCB-contaminated items at its Alabama plant and employs laborers to disassemble those items. According to the EEOC, the company has since 2020 relied exclusively on third-party staffing agencies to fill those laborer positions – and allegedly instructed those agencies not to refer women. The EEOC alleges the employer refused to hire qualified women in favor of equally or less qualified male applicants, in part because women would allegedly “distract” male workers and increase the risk of sexual harassment.

After an investigation, the EEOC issued a letter of determination finding reasonable cause to believe Title VII had been violated. When conciliation failed, the EEOC filed suit.

The Creative Defense the Employer Tried

The employer answered the EEOC’s complaint and then filed a third-party complaint for breach of contract against three staffing firms. The theory: if the employer violated Title VII by failing to hire women, the staffing firms violated Title VII too by complying with the alleged instruction not to refer women. The staffing contracts included indemnification provisions requiring the firms to cover claims arising from their own legal violations. So the employer argued the staffing firms should cover any damages and attorneys’ fees the EEOC extracts.

It was an inventive argument. The court dismissed it with prejudice.

Why Title VII Doesn’t Work That Way

Title VII creates a comprehensive remedial scheme to eradicate workplace discrimination. Courts have consistently held that a party accused of violating Title VII cannot use third-party indemnification claims to shift its own liability to someone else. The court relied on EEOC v. Blockbuster, where a similar maneuver was rejected on the same grounds: allowing it would let employers “contract around” their Title VII obligations.

The court found the public policy case even stronger here than in Blockbuster. The employer’s indemnification theory rested on its own alleged instruction to the staffing firms to help it violate federal law. As the court stated, “Federal public policy would be undermined if [the employer] had the ability to tell others to help [it] violate federal law and then pay [it] if [it] got caught.”

The court also noted in a footnote that the staffing firms are not necessarily off the hook. If they complied with an unlawful instruction not to refer women, they may face their own Title VII liability in a separate proceeding.

The employer’s underlying sex discrimination case remains live. But even at this early stage, the court has delivered a clear message about what happens when you try to pass the bill to your vendors.

What Employers and Their Staffing Partners Need to Know

• You cannot contractually shift your Title VII liability to a staffing firm. If your company sets discriminatory hiring criteria – even by instructing a vendor – you own that liability. An indemnification clause won’t save you.
• Review staffing contracts for compliance exposure, not just protection. An indemnification provision requiring a staffing firm to cover its own legal violations has limits. Courts will not enforce it to cover liability you created.
• Instructions to staffing agencies are subject to Title VII. If you tell a staffing firm not to refer candidates of a particular sex, race, or other protected class, that instruction is itself potentially actionable – for you, and possibly for the firm that complied.

When you instruct a vendor to help you discriminate, you don’t get to blame the vendor.

He worked as a building superintendent for three and a half years. His employer conceded he did the work. He was never paid wages after his first two weeks. The New Jersey Supreme Court just explained why that arrangement is going to cost the employer.

TL;DR: The New Jersey Supreme Court unanimously reversed dismissal of an undocumented worker’s wage claim, holding that Immigration Reform and Control Act of 1986 (IRCA) does not preempt state wage and hour laws, that a rent-free apartment does not satisfy New Jersey’s wage obligations, and that when an employer fails to keep records, the burden shifts to the employer – not the employee – to account for hours worked and wages owed.

📄 Read the opinion

An Apartment Is Not a Paycheck

The employee was hired in June 2015 to manage two Newark buildings owned by a realty management company. When he applied, he provided an invalid Social Security number on his W-4. The employer paid him for his first two weeks. After discovering the invalid SSN, the owner told the employee he could not pay him wages because that would be “against the law.” Instead, the employer offered a rent-free apartment with utilities covered in exchange for continued labor.

The employee kept working until December 2018 – cleaning common areas, removing snow, painting apartments between tenants, fixing pipes, and handling other maintenance. At trial, the employer agreed the employee had performed all of it. The employer just hadn’t kept any records of hours worked or wages paid. None.

The trial court dismissed the wage claim, finding the employee not credible because he had knowingly provided an invalid SSN, and faulting him for failing to produce time sheets. The Appellate Division affirmed.

The New Jersey Supreme Court reversed unanimously.

Three Holdings Every NJ Employer Needs to Know

The Immigration Reform and Control Act of 1986 (IRCA) bars employers from hiring undocumented workers. The court held it does not bar paying wages for work already performed. Requiring payment for completed work actually advances IRCA’s goals – it eliminates the financial incentive to hire undocumented labor in the first place.

A barter arrangement is not a wage. The employer argued the rent-free apartment created a legally distinct relationship outside New Jersey’s wage and hour laws. The court rejected that. New Jersey’s Wage Payment Law makes any agreement to pay wages “otherwise than as provided” in the statute null and void. An apartment is not a paycheck.

When the employer has no records, the burden flips. New Jersey law requires employers to keep records of hours worked and wages paid. When they don’t, a rebuttable presumption applies: the employee is presumed to have worked for the period and at the rate alleged, and the employer must come forward with evidence to rebut it. The trial court got this exactly backwards – it faulted the employee for not producing records the employer was legally required to keep.

For NJ employers, the combination of these holdings is significant. No records means no ability to contest the employee’s account of hours worked – and that exposure runs regardless of whether the worker was authorized to be employed.

If You Employ People in New Jersey, Read This Section

• Keep records. New Jersey requires employers to maintain records of hours worked and wages paid. If you don’t, and an employee files a wage claim, a presumption runs against you on the amount owed. This applies regardless of immigration status.
• A barter arrangement does not satisfy wage obligations. Housing, meals, and other in-kind benefits don’t substitute for wages unless properly credited against an hourly rate. Creative payment structures don’t create exceptions to the wage laws.
• Undocumented status does not reduce what you owe for completed work. Employing someone without authorization and then withholding wages is not a legal gray area. The fact that someone lacked work authorization does not reduce what you owe them for work they already performed.

Employing someone for three and a half years without paying wages is not a business model. It is a liability. The New Jersey Supreme Court just made sure everyone understands that.

Two supervisors warned a new hire in his first weeks on the job: file an EEO complaint against us, and we’ll end your government career. Then they did.

TL;DR: The Fourth Circuit vacated summary judgment for the employer on a Title VII retaliation claim after finding that an employee’s testimony that his supervisors threatened to fire him if he ever filed an EEO complaint, combined with their admission they knew about his protected activity before submitting a negative performance review, was enough to go to trial.

📄 Read the opinion

Threatened at Onboarding, Fired on Schedule

The employee started at the National Geospatial-Intelligence Agency (NGA) in July 2019. A few weeks in, he sat down with his two supervisors to discuss his role. According to his testimony, they told him that one of his predecessors had filed an EEO complaint against them, and that “if [he] had any intentions on going through a EEO case with them[,] that [he] was on a two-year probation and that they will fire [him], and [his] pretty government career will be over.” One of them reportedly added that they had “learned from” the previous EEO process and that “we will get rid of you before we go down that road again.”

That is not a performance conversation. That is a roadmap.

Less than a year later, the employee contacted the agency’s anti-harassment hotline to complain about those same supervisors. Both learned about the allegations in July 2020. One admitted to having “assumed” the employee made them. The other described an in-person meeting that “included discussion about his allegations.” The employee then filed an anonymous informal EEO complaint on August 7, 2020. His direct boss admitted he “surmise[d] . . . that [the employee] may have been the Complainant.”

On October 5, 2020, the employee filed a formal EEO complaint naming both supervisors. Three days later, he received an overall performance rating of “Unacceptable” on a form that listed one supervisor as the rater and the other as the reviewer. He was fired just over three months later.

Why the Court Sent This One to a Jury

Performance concerns predated any protected activity: documented as early as September 2019, with multiple independent complaints from team members and a 27-page termination memorandum submitted in April 2020 – months before any EEO complaint. The district court granted summary judgment to the employer. The Fourth Circuit vacated it on the retaliation claim.

The court affirmed on race discrimination and hostile work environment. But on retaliation, the combination of facts was enough: the alleged onboarding threat, both supervisors’ admissions they knew about the protected activity before submitting the negative review, and an “Unacceptable” rating arriving three days after the formal EEO complaint on a form signed by the same supervisors named in it.

As the court noted, it is not a court’s job on summary judgment “to determine what really happened or figure out whose version of events is more likely to be true.” That’s a jury’s call. Judge Rushing dissented, arguing the pre-existing performance record was so extensive and well-documented that no reasonable jury could find pretext. That’s a plausible read. The employer may still win at trial.

But when the supervisors who recommended termination are the same ones who allegedly made the onboarding threat and were named in the EEO complaint, robust documentation alone may not close the gap.

Get Ahead of the Next One

• Train supervisors on what not to say at onboarding. The alleged comments here were made in the employee’s first weeks. Supervisors should never reference prior EEO activity by former employees or suggest consequences for future complaints. Even an offhand comment becomes Exhibit A.
• Separate the decision-makers from the accused. Once a supervisor is named in an EEO complaint, that supervisor should not be signing off on the complainant’s performance reviews or termination. If they do, you are writing the plaintiff’s retaliation brief.
• Treat hotline calls as formal complaints. The court and the defendants agreed the anti-harassment hotline call was protected activity. The retaliation clock starts when the supervisor finds out, not when HR closes the file.

The performance record here was real. The employer may yet win. But the case is going to trial largely because two supervisors apparently told a new hire exactly what they would do if he ever complained, and then did it. That’s an expensive thing to say in week one.

Whatever the actual reason for firing an employee, the written explanation becomes evidence. A Mississippi restaurant is about to find out what that means.

TL;DR: The EEOC has sued a Mississippi restaurant under the Americans with Disabilities Act, alleging it fired an employee with a seizure condition just days after learning she had experienced a seizure — and documented the reason in the termination letter.

📄 Read the EEOC press release

A Termination Letter That Speaks for Itself

The employee had been upfront from day one. When she was hired at a Mississippi restaurant in October 2022, she disclosed her seizure condition to her employer and told them she hadn’t had one in years. She wasn’t hiding anything. She wasn’t asking for anything. She just wanted her employer to know.

For months, that transparency didn’t cost her anything.

Then she had a seizure. The restaurant learned about it on or around January 26, 2023. Nine days later, on February 4, it fired her. The termination letter gave her a reason: she should “focus more on her health.”

That sentence could end up being exhibit A.

These are the allegations from a recently filed EEOC complaint. A court hasn’t weighed in yet. What the EEOC is alleging, though, is hard to explain away.

Termination Timing and Termination Letters

Two things make this case difficult for the employer before it even answers the complaint.

The first is timing. A nine-day gap between learning about a medical event and issuing a termination is the kind of sequence that makes summary judgment very hard to win. Courts and juries notice it. Employers need a compelling, well-documented, pre-existing reason to overcome that kind of proximity — and nothing in the complaint suggests one exists here.

The second is the letter. Telling an employee to “focus on her health” as the stated basis for termination doesn’t read as a neutral business decision. It reads as an acknowledgment that the employer was thinking about her medical condition when it pulled the trigger.

The same paternalistic and materialistic logic surfaces in pregnancy discrimination cases. Employers who sideline or terminate pregnant employees — particularly those in physically demanding roles — on the theory that they are protecting the employee or her unborn child have fared poorly under federal law. The EEOC has been consistent: the decision about whether to keep working belongs to the employee, not the employer. Telling someone to “focus on her health” is not a business justification. It is an admission that the employer substituted its own judgment for the employee’s — and the law does not permit that trade.

What Employers Should Do Differently

Document performance and conduct issues in real time. Pre-existing performance problems that appear on paper for the first time after an employer learns about a disability have a credibility problem. Juries are good at math.

Review termination letters before they go out. No termination letter should reference an employee’s health, medical condition, or need to “take care of themselves” as a reason for separation. Those phrases don’t read as kindness. They read as admissions.

Remember that disclosure doesn’t diminish protection. There is nothing easy about telling your employer you have a seizure condition. Employees who make that disclosure are choosing vulnerability over self-protection. The ADA’s promise is that vulnerability won’t be weaponized against them.

This case is in its earliest stages and the allegations are unproven. But the EEOC doesn’t file cases it doesn’t expect to win, and this one comes with receipts.

Restrictive covenants often rise or fall at the preliminary injunction stage. A Pennsylvania appellate decision shows how two common drafting mistakes can derail an employer’s attempt to enforce a nonsolicitation agreement.

TL;DR: The Pennsylvania Superior Court affirmed denial of a preliminary injunction against departing wealth advisors where the trial court had “apparently reasonable grounds” to question whether a mid-employment nonsolicitation agreement was supported by new consideration and whether the client restriction swept too broadly. The decision highlights two recurring enforcement problems for employers: rolling out restrictive covenants after employment begins without clearly documented consideration, and drafting client restrictions that extend beyond protectable business relationships.

📄 Read the decision

Advisors left for a competitor and the employer asked the court to stop them

The dispute reached the Pennsylvania Superior Court after a trial court denied an employer’s request for a preliminary injunction against several wealth advisors who left to join a competing advisory firm.

The employer alleged that the advisors violated nonsolicitation agreements and orchestrated a coordinated move intended to shift client relationships to the competitor.

On appeal, the only question was whether the trial court had “apparently reasonable grounds” to deny emergency injunctive relief. The Superior Court concluded that it did.

A mid-employment covenant raised a consideration problem

One advisor signed nonsolicitation agreements in 2010 and again in 2014, both after his employment had already begun.

Under Pennsylvania law, restrictive covenants introduced after employment starts must be supported by new and valuable consideration. The court relied on the rule from Socko v. Mid-Atlantic Systems of CPA, Inc. that continued employment alone is insufficient.

The employer argued that the agreements were supported by eligibility for an incentive compensation program and a later salary increase. The trial court rejected that argument. The advisor testified that he had already been participating in the incentive program before signing the first agreement, and the trial court declined to assume that a later $10,000 raise was tied to the covenant rather than a routine pay adjustment.

Pennsylvania courts have recognized several forms of consideration that can support a mid-employment restrictive covenant. As the Pennsylvania Supreme Court explained in Socko, valid consideration can include a promotion, a change in employment status, or meaningful changes to compensation or benefits such as bonuses, insurance coverage, or severance benefits. The employee must receive something new in exchange for the covenant.

A broad client restriction created a second enforcement problem

The employer also faced difficulty with the scope of the client restriction.

The nonsolicitation provision prohibited the advisors from soliciting, diverting, or accepting business from customers or potential customers with whom they had contact during their employment.

The trial court concluded that portions of the clause were overly broad, and the Superior Court determined that the trial court had reasonable grounds to reach that conclusion.

Two aspects of the language drove that concern.

First, the restriction extended to “potential customers.” The trial court reasoned that this language could sweep in individuals whose relationships with the advisors predated their employment with the firm.

Second, the provision contained no geographic limitation. Pennsylvania courts sometimes enforce client-based nonsolicitation agreements without geographic restrictions when the clause is tied to specific client relationships. In this case, the trial court viewed the absence of geographic limits as reinforcing the breadth created by the “potential customers” language.

The appellate court did not hold that the clause was unenforceable. It simply concluded that the trial court had “apparently reasonable grounds” to question the scope of the restriction when denying preliminary injunctive relief.

The record did not show client solicitation

The evidentiary record also weakened the request for emergency relief.

The advisors testified that they had not contacted clients about their departure before or after leaving the firm. The opinion also notes evidence suggesting that some clients learned of the departures after the employer contacted “at risk” clients shortly after the resignations.

Without evidence of solicitation, the employer faced difficulty establishing the immediate harm required for injunctive relief.

Practical lessons for employers using nonsolicitation agreements

Employers that rely on nonsolicitation agreements should keep several practical points in mind, recognizing that restrictive covenant law varies by state.

First, when introducing a restrictive covenant after employment begins, ensure that the agreement is supported by the consideration required under the applicable state law and that the connection between the benefit and the covenant is clearly documented.

Second, draft client restrictions carefully and tie them to legitimate business interests such as protecting client relationships developed through the employee’s work for the company.

Third, remember that injunction requests require evidence. Employers seeking emergency relief should be prepared to show actual solicitation or misuse of protected relationships.

Bottom line

Two familiar mistakes can derail enforcement of a nonsolicitation agreement at the injunction stage: unclear consideration and overly broad client restrictions. This decision shows how quickly those issues can cost an employer the leverage that comes with injunctive relief.

Some employment cases hinge on timing, comparators, or complicated workplace dynamics. This one was simpler. A resident skipped work for a job interview and then sent what his supervisors viewed as a contemptuous email when asked about it.

TL;DR: The Sixth Circuit affirmed summary judgment for a medical residency program accused of retaliating against a resident for taking leave under the Family and Medical Leave Act (FMLA). Months after taking approved leave for the birth of his child, the resident skipped a shift to attend a job interview, failed to follow call-out procedures, and sent a contemptuous email to his chief resident when asked about the absence. The chief resident issued a written reprimand and referred the matter to a disciplinary committee, which later suspended him for two weeks for unprofessional conduct. Even assuming the resident could establish a prima facie case of FMLA retaliation, the court held that he failed to show the program’s explanation for the discipline was pretext.

📄 Read the decision

Missing a shift for a job interview

The plaintiff was a resident physician in a medical residency program from 2016 through 2019. In April 2018, he requested and received approval for leave under the Family and Medical Leave Act (FMLA) after the birth of his child. He took about two weeks of leave in late May and early June.

Several months later, on October 5, 2018, he did not show up for work.

That evening, his chief resident emailed asking why he had missed his shift and why he had not notified anyone beforehand. When she still had not heard from him by Monday morning, she sent a second email.

The resident eventually replied that he had been at a job interview. Instead of apologizing for missing the shift or for the delayed response, he suggested that he would have told her about the interview if she had not been absent from work herself.

The chief resident did not take that well. She described the email as “very contemptuous and simply unacceptable.” She issued a written reprimand and referred the matter to the program’s disciplinary committee.

The program concluded the conduct was unprofessional

The disciplinary committee reviewed the situation and identified several problems:

• The resident missed work without following the program’s notification procedures.
• He did not respond promptly when his supervisor asked about the absence.
• His response to the chief resident was unprofessional.

The committee also considered prior concerns about the resident’s professionalism raised by supervisors.

Based on all of that, the committee suspended him for two weeks and placed the discipline in his permanent record. An internal appeals committee later upheld the decision and required him to complete a professionalism course.

The resident blamed FMLA leave

The resident later sued, claiming the discipline was retaliation for the FMLA leave he had taken months earlier.

The Sixth Circuit assumed for the sake of argument that he could establish the basic elements of a retaliation claim. But that still left the key question: was the program’s explanation for the discipline real, or was it a cover for retaliation?

The court concluded it was real.

The program pointed to three straightforward reasons for the discipline: the missed shift, the failure to respond promptly to a supervisor, and the tone of the email that followed. The resident could not produce evidence showing that explanation was false.

The evidence he relied on did not help

The resident pointed to several things he believed showed hostility toward FMLA leave. None created a real dispute about the reason for the discipline.

He cited a WhatsApp message among residents suggesting that program leadership was concerned about possible abuse of sick leave or FMLA leave. But the chief resident who initiated the discipline was not part of that group chat and did not attend the meeting referenced in the message.

He also tried to compare his discipline to other residents. One resident who took FMLA leave received the same two-week suspension after repeatedly lying about her whereabouts. Another resident who missed work was not suspended, but that resident had not engaged in the same unprofessional conduct toward supervisors.

In short, the comparisons did not support the retaliation theory.

Practical lessons for employers

First, tie discipline to specific conduct. Here, the program documented the missed shift, the communication failures, and the email exchange that followed.

Second, professionalism expectations carry real weight in training programs where communication with supervisors is a core job expectation.

Third, prior protected activity does not prevent later discipline. Taking FMLA leave does not shield an employee from consequences for unrelated misconduct that occurs later.

Bottom line

The resident argued that the suspension must have been retaliation for taking FMLA leave months earlier. But when an employer can point to specific, documented misconduct, courts are unlikely to send the case to a jury on a theory that the real reason must have been something else.

Some employment cases turn on close calls, messy comparators, or shaky documentation.

This one turned on something simpler: an employee who admitted to a string of workplace misconduct and still tried to turn the termination into a discrimination, retaliation, and hostile-work-environment case.

TL;DR: An Illinois federal court granted summary judgment to a state agency that terminated an employee after investigating multiple workplace-misconduct incidents, including throwing paper clips and clip binders at a coworker’s desk, calling another employee lazy, leaving her workstation while assigned to phones, and filming her supervisor without permission. The court held that the employee could not show she was meeting legitimate expectations, could not identify proper comparators, and could not prove pretext or a hostile work environment.

📄 Read the decision

The misconduct record buried the discrimination case

The employee worked in the agency’s information department and claimed that she was fired because of her race, national origin, and color. She also claimed retaliation and hostile work environment.

The problem was the record.

The court noted that the employee admitted several incidents that led to her discharge. She admitted throwing paper clips and clip binders at another employee’s desk. She admitted an altercation in which she told another employee, “Well, you’re just lazy, and I’m not.” She admitted leaving her workstation while assigned to answer telephones. And she admitted using her cell phone to film her supervisor without permission and refusing to stop.

After reviewing the incidents, the employer concluded that multiple violations had been substantiated and that termination was the appropriate next step under its progressive discipline system. By then, the employee already had two oral reprimands, one written reprimand, and eight prior suspensions.

That is not a great record for a plaintiff trying to argue that the real reason for termination was unlawful bias.

The court focused on what the employer honestly believed

The employee argued that a subsequent investigation into the allegation of misconduct was biased and incomplete. The court rejected that argument.

Why? Because pretext is not about whether the employer made a perfect decision. It is about whether the employer lied about or had a “phony reason” for the decision.

Even if the investigation could have been cleaner, the employee admitted much of the conduct, and the employer had a documented basis for concluding that she violated workplace policies. That was enough to defeat discrimination and retaliation claims.

The retaliation claim ran into the same wall

The employee also claimed that the agency fired her in retaliation for an earlier EEOC charge, an earlier lawsuit, and complaints of harassment during the termination process.

That theory failed too.

The court emphasized that prior protected activity does not insulate an employee from discipline for later misconduct. Once the employer had evidence of intervening workplace misconduct, the retaliation theory lost steam fast.

That is a useful reminder for employers. Protected activity does not create a free-pass period.

The language-comments theory was not enough

The employee also relied on comments about her English and accent, along with workplace scrutiny and criticism from her supervisor.

The court held that even taking those allegations in the employee’s favor, the comments and conduct were too isolated and too weakly connected to the termination decision to create a triable discrimination or hostile-work-environment claim.

What employers should take from this one

First, investigate misconduct promptly and tie the final decision to specific conduct, not vague frustration.

Second, keep progressive discipline records in order. A termination decision looks much more defensible when it follows a documented history instead of arriving out of nowhere.

Third, do not panic just because an employee has filed an EEOC charge or prior lawsuit. Protected activity does not block later discipline where new misconduct is real, documented, and independently serious.

The bottom line

If an employee admits to a series of workplace-rule violations, courts are not eager to let the case drift to trial on a theory that the employer must have secretly meant something else.

Employers that rely on arbitration agreements should pay attention to a recent Sixth Circuit decision. One plausible sexual-harassment claim can keep an entire lawsuit in court—even claims that would otherwise go to arbitration.

TL;DR: The Sixth Circuit held that when a complaint plausibly alleges a sexual-harassment dispute, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) makes a predispute arbitration agreement unenforceable for the entire case, not just the harassment claim. The employee’s ADA claims therefore stayed in federal court instead of going to arbitration.

📄 Read the decision

The arbitration fight

The employee sued her former law firm employer and brought several claims, including a Title VII sexual-harassment claim and two ADA claims involving disability accommodation.

The employer had a broad arbitration agreement and moved to enforce it.

Its position was straightforward: even if the harassment claim stayed in court, the ADA claims should still go to arbitration.

The employee pointed to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act and argued that once a lawsuit includes a sexual-harassment dispute, arbitration cannot be compelled.

The key word in the statute: case

The Sixth Circuit first held that the employee’s harassment claim plausibly alleged a hostile work environment. If that claim failed, the remaining claims would go to arbitration. With the harassment claim moving forward, the court turned to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.

The statute says that “no predispute arbitration agreement … shall be valid or enforceable with respect to a case … that relates to a sexual harassment dispute.” (emphasis added). The employer argued for a claim-by-claim approach. Under that view, the harassment claim could remain in court while the ADA claims would still be arbitrated.

The Sixth Circuit rejected that argument.

Congress used the word case, not claim, and a case means the entire lawsuit. Once a complaint plausibly alleges a sexual-harassment dispute, the arbitration agreement cannot be enforced for any claims in that lawsuit. The employee’s ADA claims therefore stayed in court. The court also noted that this reading aligns with an emerging consensus among district courts interpreting the EFAA the same way.

What this means for employers

⚖️ One claim can determine the forum.
A plausible sexual-harassment claim can keep all claims in the lawsuit out of arbitration.

📑 Motions to dismiss now carry more weight.
If the harassment claim is dismissed, arbitration may still be available. If it survives, arbitration may be off the table entirely.

📝 Expect strategic pleading.
Because the presence of a harassment claim can determine the forum, plaintiffs’ lawyers may include harassment allegations alongside other employment claims.

Bottom line

The EFAA uses the word case, and the Sixth Circuit took that word seriously.

Once a complaint plausibly alleges a sexual-harassment dispute, an otherwise valid arbitration agreement may not apply to any part of the lawsuit.

One harassment claim can knock an entire case out of arbitration.

For nearly a decade, the U.S. Equal Employment Opportunity Commission said denying a transgender employee access to the restroom matching that employee’s gender identity violated Title VII.

Last month, the agency reversed course.

Private employers should read the fine print before changing anything.

TL;DR: Last month, the EEOC ruled that federal agencies may maintain sex-segregated bathrooms and exclude employees from opposite-sex facilities, overturning its 2015 Lusardi precedent. The decision applies only to federal agencies and does not bind courts or private employers. It also signals the EEOC is unlikely to pursue restroom-access claims based solely on Title VII. But private employers still face potential exposure from private lawsuits and state or local nondiscrimination laws.

📄 Read the decision

What the EEOC actually decided

The decision comes from Selina S. v. Department of the Army, a federal-sector discrimination appeal involving a transgender civilian employee working at a military installation.

The employee sought access to women’s bathrooms and locker rooms. The Army denied the request and dismissed the employee’s EEO complaint. On appeal, the EEOC affirmed.

The Commission held that Title VII permits federal employers to maintain single-sex bathrooms and similar “intimate spaces” and to exclude employees from facilities designated for the opposite sex. In doing so, it expressly overturned Lusardi v. Department of the Army, where the EEOC had previously found that denying a transgender employee restroom access consistent with gender identity constituted sex discrimination.

The vote was 2–1. Chair Andrea Lucas and Commissioner Brittney Panuccio formed the majority. Commissioner Kalpana Kotagal dissented.

The dissent previews the lawsuits coming next

Kotagal’s dissent argues the majority misapplies Bostock v. Clayton County. Under Bostock’s but-for test, she writes, if an employee assigned female at birth could use the women’s restroom but a transgender woman could not, the difference in treatment occurs because of sex.

In other words, if you are wondering what the next Title VII complaint will say, the dissent already wrote the outline.

The fine print private employers should focus on

First, the ruling applies only to federal agencies. The EEOC issued the decision while reviewing a federal-sector discrimination complaint, and it does not bind courts or private employers.

Second, the decision signals a shift in enforcement posture. If the EEOC now believes Title VII permits sex-segregated restroom policies, the agency is unlikely to pursue private-sector charges based solely on those policies the way it might have under Lusardi. For private employers, that likely means fewer, if any, investigations into transgender restroom-access claims.

Third, courts still control the meaning of Title VII. The Supreme Court in Bostock did not decide bathroom or locker-room issues, leaving that question unresolved.

Fourth, don’t forget about state law. Many jurisdictions prohibit discrimination based on gender identity and likely would require employers to allow employees to use facilities consistent with their gender identity. For example, the New Jersey Law Against Discrimination generally requires employers to allow employees to use facilities consistent with their gender identity.

Bottom line

The EEOC reversed its restroom-access precedent. For private employers, that changes the federal enforcement landscape. But it does not eliminate litigation risk or override state law.

That escalated quickly.

A university fired its HR director and asked him to return his work laptop. He refused for months. Campus police eventually obtained a felony arrest warrant. When the former employee finally showed up with the laptop, officers arrested him. He then sued for retaliation.

TL;DR: The U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment for a public university in a Title VII race discrimination and retaliation case. The plaintiff claimed the university caused his arrest in retaliation for filing discrimination charges after he refused to return a university laptop. The court held that the university had a legitimate, non-retaliatory reason for involving police – recovering its property – and the plaintiff produced no evidence that explanation was pretext.

📄 Read the decision

The laptop dispute

The plaintiff worked as a director responsible for labor relations and HR compliance. Less than a year into the job, the university terminated his employment after documenting multiple performance concerns, including problems with organization, responsiveness, and work product.

Although he remained on payroll during a 90-day termination notice period, the university instructed him to stop working immediately. Soon afterward, the university directed him to return his university-issued laptop.

He refused.

The plaintiff argued that because he remained on payroll, he could keep the laptop until the end of the notice period. The university disagreed and repeatedly instructed him to return the computer earlier.

Months passed. The laptop still had not been returned.

Campus police get involved

By April the university referred the issue to campus police. A detective contacted the plaintiff, who acknowledged that he still had the laptop and said he would return it.

He did not.

After several unanswered calls and voicemail messages, and with the laptop still unreturned even after the plaintiff’s employment ended, police obtained a felony arrest warrant for theft of government property based on the laptop’s value.

The plaintiff eventually contacted the detective and offered to return the computer. But he still did not bring it back until weeks later. When he arrived at the police station with the laptop, officers executed the warrant.

He spent several hours in jail before being released. Prosecutors later dismissed the criminal charges.

The retaliation claim failed

The plaintiff argued that the university caused his arrest in retaliation for filing discrimination charges with a state civil rights agency.

The Sixth Circuit disagreed.

Even assuming the plaintiff could establish a prima facie case of retaliation, the claim failed at the pretext stage. The university offered a legitimate explanation for seeking the arrest warrant: the plaintiff had refused to return its laptop despite repeated requests and even after his employment ended.

The plaintiff produced no evidence that this explanation was false or a cover for retaliation.

The court also rejected the plaintiff’s attempt to rely on Supreme Court precedent involving First Amendment retaliation claims under 42 U.S.C. § 1983. Title VII retaliation claims follow a different analytical framework.

The discrimination claims failed too

The plaintiff also alleged race discrimination based on the employer’s decision not to promote him and its later decision to terminate his employment.

Those claims failed as well. The employer produced evidence that the candidate selected for the promotion had stronger support from the hiring committee and broader qualifications. As for the termination, the employer documented multiple performance concerns, while the plaintiff largely relied on unsupported allegations.

Takeaways for employers

Start with the basics: get company property back quickly. Employers should clearly communicate when and how departing employees must return laptops, phones, badges, and other equipment. Put the expectation in writing and follow up promptly if something does not come back.

Shut off system access immediately. When an employee separates but still has company hardware, disable network, VPN, email, and other system access right away.

Use a consistent termination checklist. Offboarding should not be improvised. A structured checklist helps ensure the employer collects company property, disables system access, addresses benefits and final pay, and communicates the departure internally and externally in an organized way.

If it would help, I’m happy to share my termination checklist. Just email me at eric.meyer@pierferd.com, and I’ll send it along.

Bottom line

Holding onto company property after termination is rarely a winning strategy.

This version of the Return of the Mac ended with handcuffs and summary judgment.

Sometimes the accommodation request itself tells the whole story.

In a recent Fourth Circuit Rehabilitation Act decision, a federal air marshal asked to stay in a ground-based role permanently after medical conditions prevented her from flying. But in doing so, she also acknowledged that she could not perform the essential duties of the job she wanted to keep.

TL;DR: The Fourth Circuit affirmed dismissal of a failure-to-accommodate claim brought by a former federal air marshal who admitted she could not perform the mission-ready flight duties tied to the position she wanted to keep permanently. Because she was not a qualified individual and the Transportation Security Administration (TSA) reassigned her to another federal job after exploring accommodations, her claim failed. For private employers, the same principles apply under the Americans with Disabilities Act (ADA): essential job functions still matter, employees cannot rewrite the job, and reassignment can satisfy the duty to accommodate. The opinion names the Secretary of Homeland Security at the time as defendant. Federal case captions sometimes age faster than the legal principles.

📄 Read the decision

A temporary workaround did not become a permanent job

The plaintiff worked more than seven years as a Federal Air Marshal for the Transportation Security Administration (TSA). Over time, worsening medical conditions limited her ability to perform full duty.

TSA placed her on temporary light duty and later assigned her to a largely ground-based Regional Coordinator role. But even that job required employees to remain mission-ready and capable of flying assignments.

After a medical review raised concerns that she no longer met agency standards, TSA warned she could face removal and encouraged her to seek reassignment.

She submitted an accommodation request acknowledging her “inability to perform the essential duties” of her position and asked for reassignment. TSA found no suitable vacancies within the agency, so she identified openings at the Federal Law Enforcement Training Centers, another DHS component. TSA approved her reassignment there.

More than a year later, unhappy with the move, she sued and argued TSA should have kept her permanently in the Regional Coordinator role.

The district court dismissed the case, and the Fourth Circuit affirmed.

Her own allegations undermined the claim

To pursue a failure-to-accommodate claim under the Rehabilitation Act or the Americans with Disabilities Act (ADA), an employee must be able to perform the essential functions of the job with or without reasonable accommodation.

That requirement proved fatal here.

In her accommodation request, the plaintiff acknowledged she could not perform the essential duties of the role she wanted TSA to preserve permanently. Even the Regional Coordinator position required employees to remain mission ready and capable of flying assignments.

Because her medical condition prevented her from meeting that requirement, the court concluded she had effectively pleaded herself out of a claim.

Courts defer to employers on essential functions

The Fourth Circuit emphasized that employers generally define the essential functions of a position, and courts typically give those judgments significant deference.

That principle applies equally in the private sector under the ADA. An accommodation may help an employee perform a job, but it does not require the employer to eliminate a core function.

Reassignment satisfied the accommodation duty

The court also concluded TSA had already met its obligations.

The agency used temporary light duty, evaluated other positions, and ultimately reassigned the employee to another federal role she helped identify.

Under disability law, reassignment is generally treated as a last-resort accommodation when no reasonable option allows the employee to perform the essential functions of the current job.

Three reminders for employers

First, essential job functions still control. Employers do not have to eliminate core duties as an accommodation.

Second, employees cannot dictate the accommodation they prefer. The law requires a reasonable accommodation, not the employee’s preferred arrangement.

Third, reassignment may satisfy the ADA. When the employee cannot perform the essential functions of the current job, transfer to another role may fulfill the employer’s obligation.

Bottom line

Although this case arose under the Rehabilitation Act and involved a federal agency, the analysis should feel familiar to private employers handling ADA accommodation requests.

Engage in the interactive process and explore reasonable options. But the law does not require employers to convert temporary assignments into permanent positions or remove the essential functions that define the job.

One employee tried exactly that. The Seventh Circuit explained why it didn’t work.

TL;DR: An employee failed to return to work after her approved leave under the Family and Medical Leave Act (FMLA) expired. After the employer terminated her for failing to return, she attempted to retroactively report several absences as intermittent FMLA leave. The Seventh Circuit affirmed summary judgment for the employer, holding that she was not denied FMLA benefits to which she was entitled and that she failed to comply with the law’s notice requirements.

📄 Read the decision

When approved leave ends, the expectation is simple: return to work

The employee worked as a human resources specialist and had previously been approved for intermittent leave under the Family and Medical Leave Act (FMLA) for migraines. Later that year, she obtained approval for continuous FMLA leave to care for her son from August 31 through November 3.

When that leave expired, the employer told her multiple times to return to work on November 15. She did not return.

Instead, she called the company’s attendance line that morning, said she assumed she had already been terminated, thanked the company for the opportunity, and indicated she would return company property. The employer terminated her that same day for “Leave Exhaust/Failure to Return to Work.”

The lawsuit followed.

The next day, she tried to change the story by attempting to retroactively report intermittent FMLA leave for absences on November 11, 12, and 15. That strategy did not work.

The court’s analysis was straightforward

The employee alleged FMLA interference and retaliation, but both claims failed.

The interference claim collapsed because the employee attempted to report intermittent leave after she had already been terminated. At that point, she was no longer entitled to FMLA benefits.

Even setting that aside, the claim still had a notice problem. FMLA regulations require employees to provide notice of leave “as soon as practicable” and generally consistent with the employer’s normal reporting rules.

Here, the employer required employees to report intermittent FMLA absences the same day they occurred. The employee did not do that. Instead, she tried to report the absences the day after she was fired.

The retaliation claim failed for the same basic reason. The evidence showed the termination was based on her failure to return to work when instructed, not on her earlier use of FMLA leave.

As the court observed, the record told a simple story—the employer terminated the employee for an unexcused absence.

Practical reminders for employers

• FMLA notice rules matter. Employees generally must follow the employer’s usual reporting procedures unless circumstances prevent it.

• Retroactive leave requests may be risky. In certain instances, waiting to claim FMLA leave until after an absence—or worse, after termination—can defeat an FMLA claim entirely.

• Return-to-work instructions should be clear and documented. In this case, the employer repeatedly told the employee exactly when she needed to return.

• Termination for failure to return after leave expires is not retaliation. At least where the record shows the decision was based on the employee’s absence itself.

• Don’t forget the Americans with Disabilities Act (ADA). Even when FMLA leave is exhausted, a medical condition may still trigger the employer’s duty to consider reasonable accommodation, which can sometimes include additional leave.

The bottom line

FMLA provides powerful protections. But it does not allow an employee to miss work, get fired, and then retroactively label the absence protected leave.

Can an employee secretly rack up overtime and sue for it later?

The Fifth Circuit says not without proof that the employer knew or should have known about those hours.

TL;DR: The Fifth Circuit affirmed a defense verdict in a Fair Labor Standards Act (FLSA) overtime case because the employee failed to prove the employer had actual or constructive knowledge of his overtime work. Even though the district court ruled the worker should have been classified as an employee and had worked at least 816 hours of overtime, the only issue for trial was whether the employer knew or should have known about those hours. The jury said no, and the Fifth Circuit upheld that verdict.

📄 Read the decision

A six-figure insurance manager claims overtime

An insurance agency manager sued his employer claiming he had been misclassified as an independent contractor and was entitled to overtime pay under the Fair Labor Standards Act (FLSA).

In that role, the employee supervised a team of insurance agents across multiple agencies. He set his own schedule, decided how many hours he worked each day, and had no obligation to track or report his time. The employer did not supervise his hours or require him to log them. Instead, he was paid purely on commission for policies sold and renewed.

From 2016 through 2018, he earned between $552,000 and $627,000 per year.

On summary judgment, the district court ruled that the worker should have been classified as an employee rather than an independent contractor. The court also determined that he had worked at least 816 hours of overtime.

But that did not resolve the case.

The only question for the jury was whether the employer knew or should have known that the employee was working those overtime hours. The jury found that it did not.

Allowing unlimited hours does not eliminate the knowledge requirement

On appeal, the employee argued the employer should still be liable because it allowed him to work unlimited hours. The FLSA defines “employ” as “to suffer or permit to work,” and he argued that allowing him to work as much as he wanted meant the employer owed him overtime regardless of its knowledge.

The Fifth Circuit rejected that argument.

Allowing someone to work as much as he pleases does not mean the employer automatically owes overtime “regardless of [its] knowledge of those overtime hours.” Employees seeking overtime must still prove the employer had actual or constructive knowledge that the overtime work was being performed.

The employee also argued the employer should be deemed to have constructive knowledge because it did not maintain a timekeeping system requiring him to report his hours.

Again, the court disagreed. The burden remained on the employee to prove the employer knew he was working overtime. Treating the absence of a timekeeping system as automatic constructive knowledge would improperly shift that burden to the employer.

Because the jury reasonably concluded the employer lacked actual or constructive knowledge of the overtime work, the Fifth Circuit affirmed the verdict.

Practical takeaways for employers

First, overtime liability still turns on employer knowledge. Employees claiming overtime must show the employer knew or should have known the work was happening.

Second, misclassification alone does not guarantee overtime liability. Even when a worker should have been classified as an employee, the knowledge requirement still applies.

Third, clear reporting procedures can protect employers. When employees are responsible for reporting their own time and fail to do it, courts are reluctant to hold employers liable for hidden overtime.

The bottom line

The FLSA protects employees who are required or allowed to work overtime. But it does not impose liability when an employee works extra hours without the employer’s knowledge and without giving the employer a reasonable opportunity to stop it.

Sometimes the missing ingredient in an overtime case is not the hours worked.

It is notice.

Some employers try. The Fourth Circuit just explained why that trick doesn’t work for these federal discrimination claims.

TL;DR: The Fourth Circuit held that employers cannot contractually shorten the time employees have to file discrimination lawsuits under Title VII of the Civil Rights Act of 1964 (Title VII) or the Age Discrimination in Employment Act (ADEA). Joining the Sixth Circuit, the court explained that these statutes contain a detailed enforcement scheme that runs through the Equal Employment Opportunity Commission (EEOC), and private agreements cannot prospectively render untimely a lawsuit that would otherwise be timely. The court vacated summary judgment on the federal claims but allowed dismissal of the employee’s Maryland state-law discrimination claim to stand.

📄 Read the decision

An onboarding agreement that tried to shorten the clock

Before starting her job, an employee signed an employer-drafted agreement containing a 180-day limitations provision covering any lawsuit “relating to [her] employment.”

And wouldn’t you know it, the employer terminated her on November 9, 2022.

The employee filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) and the Maryland Commission on Civil Rights on February 23, 2023. The EEOC issued a right-to-sue letter on September 7, 2023.

She filed suit on December 6, 2023, asserting claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Maryland Fair Employment Practice Act (MFEPA).

The employer argued that the lawsuit was untimely because the employee had agreed to file any employment-related claims within 180 days. The district court agreed and granted summary judgment.

The Fourth Circuit rejects the workaround

The Fourth Circuit reversed in part. Joining the Sixth Circuit, the court held that employers cannot prospectively shorten the time employees have to bring discrimination claims under Title VII or ADEA.

Those statutes contain a carefully integrated enforcement scheme. Employees must first file a charge with the EEOC. The agency investigates the allegations and may attempt conciliation before litigation proceeds.

The statutes also contain specific timing rules. Employees generally have 180 to 300 days to file a charge with the EEOC, and once the EEOC issues a right-to-sue notice, they have 90 days to file a lawsuit.

Allowing employers to shorten that timeline through private agreements would interfere with the statutory framework Congress created.

As the court explained, parties may not prospectively render untimely a lawsuit that would otherwise be timely under Title VII or the ADEA.

The Fourth Circuit therefore vacated summary judgment on the federal discrimination claims and remanded the case for further proceedings.

The state-law claim came out differently

The employee also asserted a claim under the MFEPA.

On that claim, the Fourth Circuit reached a different conclusion. Under Maryland law, parties may agree to shorten a limitations period if the provision is reasonable and not otherwise prohibited.

Because the employee did not preserve an argument that the shortened period was unreasonable under Maryland law, the Fourth Circuit allowed dismissal of the MFEPA claim to stand.

Practical takeaways for employers

Contractual limitation clauses have limits

Many employers include provisions requiring employees to file employment-related lawsuits within 180 days or one year.

A clause that may work for certain state-law claims may not shorten the filing window for Title VII or ADEA claims — and it definitely will not in the Fourth and Sixth Circuits.

The EEOC process controls the timeline

Congress designed these statutes to funnel discrimination disputes through the EEOC before litigation begins. A contractual deadline that effectively compresses that process conflicts with the statutory framework.

Review template agreements carefully

Employers that rely on shortened limitations provisions in offer letters, employment agreements, or arbitration agreements should revisit those templates. A provision that may work for certain state-law claims may not apply to federal discrimination claims.

The bottom line

Employers can often manage litigation risk through contracts. But when Congress sets the enforcement timeline for Title VII and the ADEA, private agreements cannot shorten it in the Fourth Circuit.

By now, you’ve likely seen coverage of the Missouri Attorney General’s lawsuit challenging Starbucks’ DEI initiatives.

The opinion’s value lies in its doctrinal clarity. It illustrates how established discrimination law applies when DEI-related practices are challenged — and what employers should consider to reduce legal risk when designing and implementing those programs.

TL;DR: The court dismissed the case primarily for lack of standing and, alternatively, for failure to state a claim. The complaint did not identify any specific adverse employment action tied to Starbucks’ diversity goals, mentorship programs, or executive compensation metrics. The holding is narrow but important: the existence of demographic goals or DEI-linked incentive structures does not, without more, establish unlawful discrimination. A plaintiff must allege that those policies were implemented in a way that produced a materially adverse employment action.

📄You can read the full decision here.

What Was Challenged

In State of Missouri v. Starbucks Corp., the State challenged several components of Starbucks’ DEI initiatives.

The complaint targeted mentorship programs initially focused on BIPOC and later LGBTQ+ employees, employee affinity or “Partner Network” groups, publicly announced demographic representation goals, and executive compensation metrics tied in part to diversity objectives.

The claims were brought under Title VII, 42 U.S.C. § 1981, and the Missouri Human Rights Act. The State’s theory was that Starbucks’ demographic goals and related incentive structures operated as unlawful race- and sex-based quotas.

The court rejected the case at the threshold. It held that the State lacked Article III standing, was not authorized to sue under the statutes invoked, and failed to allege any concrete adverse employment action.

For employers and counsel, the adverse-action analysis is the most instructive portion of the opinion.

Diversity Goals and the Adverse-Action Requirement

The complaint treated Starbucks’ publicly stated representation goals as functional quotas. The court focused instead on what the complaint did not allege.

There was no identified applicant denied employment because of race or sex. No employee was alleged to have been terminated, demoted, or passed over to meet a demographic target. The complaint did not plead that managers were instructed to hire based on protected characteristics or that workforce percentages operated as mandatory directives in individual employment decisions.

Under Title VII and related statutes, discrimination requires an adverse employment action — something that materially affects the terms, conditions, or privileges of employment. As the court emphasized, the mere existence of a diversity policy, without more, does not state a discrimination claim.

A representation goal becomes legally significant only if it is implemented in a way that produces discriminatory action.

Executive Compensation Metrics

The complaint devoted substantial attention to Starbucks’ executive incentive plans. Those plans incorporated diversity-related metrics, including inclusion goals within performance factors, retention metrics for BIPOC employees, and representation modifiers affecting stock awards.

The court did not hold that such compensation structures are lawful. Instead, it held that the complaint failed to allege a causal link between those mechanisms and discriminatory employment decisions.

Several factual points weakened the State’s theory. The demographic targets had already been met or exceeded when announced. Retention metrics are not inherently zero-sum. Workforce shifts alone — such as becoming “more female” or “less white” — do not establish discriminatory causation without factual allegations tying those shifts to specific employment actions.

Structure alone was insufficient. Implementation would have been the battleground.

Mentorship Programs and Affinity Groups

The State also challenged Starbucks’ mentorship initiatives and Partner Networks.

The court noted that the internal mentorship program was later expanded to all employees and that public filings described Partner Networks as open to all employees. Critically, the complaint did not allege that any individual was excluded from participation or denied a tangible employment benefit because of these programs.

Even assuming such initiatives could qualify as “training” under Title VII, the absence of alleged discriminatory exclusion or material disadvantage was fatal to the claim.

Practical Takeaways

For employers maintaining DEI initiatives, the case underscores the importance of disciplined design and implementation. Consider:

• Frame demographic goals as aspirational. Avoid language suggesting mandatory hiring or promotion targets tied to protected characteristics.
• Train decision-makers carefully. Representation objectives cannot override Title VII’s prohibition on race- or sex-based employment decisions.
• Review compensation metrics. Incentive structures should reward lawful leadership behaviors and inclusive management practices, not protected-class outcomes.
• Audit internal communications. Language suggesting hiring or promotion decisions made to “hit numbers” can create litigation risk.
• Evaluate mentorship and development programs. Ensure they do not exclude employees from tangible employment benefits based on protected status.

The takeaway is not retreat from inclusion efforts. It is careful structure, disciplined execution, and adherence to established employment discrimination law.

A manager allegedly makes racially inappropriate jokes. Months later, the company eliminates a position in a nationwide cost-cutting initiative and reduces an employee’s hours. So she sues for race discrimination, retaliation, and hostile work environment.

But she loses.

TL;DR: The Eleventh Circuit affirmed summary judgment after a nationwide restructuring eliminated a clerk position and reduced an employee’s hours. The plaintiff lacked a valid comparator, filed her Equal Employment Opportunity Commission charge after the adverse action, and did not show harassment that was severe or pervasive under Title VII of the Civil Rights Act of 1964.

📄 Read the decision here.

The restructuring decision

The employer implemented a nationwide “Clerical Optimization Project” to reduce costs. As part of that initiative, it eliminated the afternoon operations clerk role.

When the employee returned from leave, she exercised seniority to move into another clerical position. Her hours dropped to three and one half per shift — the minimum allowed under the collective bargaining agreement.

Why the comparator argument failed

Her discrimination theory was simple: two white coworkers worked more hours.

But the comparison fell apart under scrutiny.

One coworker had greater seniority. Seniority controlled access to additional work hours. That difference directly affected scheduling outcomes. She also performed both clerical and non-clerical duties, meaning her role was structured differently.

The other coworker was primarily a package handler. She did not hold the same clerk position and did not share the same core job responsibilities.

Under Eleventh Circuit precedent, comparators must be similarly situated in all material respects. Differences in seniority and job duties are material — especially when those factors determine who receives extra hours.

Once those distinctions were accounted for, the hour disparity no longer supported an inference of discrimination. The employer also had a documented, nationwide cost-reduction initiative explaining the elimination of the role. That combination ended the discrimination claim.

The retaliation claim ended on timing

The only protected activity identified was filing an Equal Employment Opportunity Commission charge.

That filing occurred after the position was eliminated and the hours reduced.

The timeline defeated causation.

The hostile work environment claim lacked severity or pervasiveness

The employee alleged jokes referencing Dr. Martin Luther King Jr., use of “Mammy” and “nappy,” a comment that “black food smells like dead animals,” and distributing hats and T-shirts only to white employees.

The court described the allegations as serious and inappropriate. But the record did not show that the comments were frequent or that they interfered with her job performance. Without severity or pervasiveness, the claim failed at summary judgment.

Employer takeaways

• Courts do not assume discrimination just because inappropriate comments exist in the same workplace as an adverse decision. There must be evidence tying the decision to a protected characteristic.
• Comparator analysis is structural, not superficial. Differences in seniority, job duties, or scheduling authority can defeat an inference of unequal treatment.
• Retaliation requires a coherent timeline. If the protected activity happens after the decision, the claim fails.
• Hostile work environment claims still require proof of severity or pervasiveness — not just offensive language.

This case is a reminder that uncomfortable facts and unlawful discrimination are not the same thing. Evidence is what separates the two.

If your FLSA exemption strategy depends on a minimum one- or two-day guarantee, this decision should get your attention.

The Fifth Circuit just rejected that structure under the statute’s salary-basis test.

TL;DR: To qualify for the executive, administrative, or professional exemption under the Fair Labor Standards Act (FLSA), an employee must be paid a true weekly salary, meaning a predetermined amount that covers the week regardless of how many days are worked. In the Fifth Circuit, a “retainer” guaranteeing only one or two days of pay if any work is performed during the week does not meet that standard. The employer avoided willfulness and liquidated damages because it relied on counsel and engaged with the Department of Labor, but it still lost on liability.

📄 Read the Fifth Circuit’s decision

A post-audit pay change that still failed

After a Department of Labor audit, the employer revised its compensation structure for certain workers it classified as exempt from overtime.

Under the new plan:

• If an employee performed any work during the week, the employee was guaranteed one or two days of pay.
• If the employee worked beyond that minimum, the employee was paid the normal hourly or day rate for all hours worked.

The company labeled that minimum a “retainer.”

The Fifth Circuit said that was not a salary.

A salary has to cover the week, not just the day

To avoid overtime under the Fair Labor Standards Act (FLSA), employers must satisfy three requirements for the white-collar exemptions: duties, salary level, and salary basis.

The salary-basis requirement means the employee receives a predetermined weekly amount that does not fluctuate based on the quantity of work performed. The employee is paid for the week, not for the days or hours within it.

The Fifth Circuit emphasized that payment on a weekly basis requires a true weekly rate. Just as an hourly employee is paid for all work performed in the hour, a salaried employee must be paid for all work performed in the week. A one- or two-day guarantee does not do that. It compensates only part of the week and leaves the total amount dependent on how much the employee works.

That makes the structure a day-rate system with a minimum floor, not a weekly salary. Under Fifth Circuit law, that fails the exemption.

What this means for employers

This case involved a staffing company, but the lesson applies well beyond that industry.

1. Review hybrid and day-rate models carefully.
If your organization uses day-rate hybrids, minimum-day guarantees, retainer-plus-hourly structures, or partial weekly floors, take a hard look at them. If the compensation operates like a day-rate system, a court may treat it like one. Labels will not save it.

2. A post-audit “fix” must actually fix the problem.
Changing the name of the pay structure is not enough. The substance of the guarantee matters. A weekly salary must cover the week.

3. Good-faith compliance efforts matter.
Although the employer lost on liability, it avoided willfulness and liquidated damages. The record showed:

• A prior DOL audit
• A revised compensation structure afterward
• Reliance on advice of counsel
• An internal questionnaire analyzing exempt status
• Materials provided to DOL
• No violation finding at the time

That evidence defeated reckless-disregard allegations. The two-year statute of limitations applied, and liquidated damages were denied.

4. Document your analysis.
Audit creative pay models before implementation. Engage counsel. Preserve documentation. Even if a court later disagrees with your classification decision, those steps can materially limit exposure.

5. Do not forget state law.
The Fair Labor Standards Act (FLSA) sets the federal floor, but many states have their own wage-and-hour laws, and some apply stricter exemption standards. A structure that fails under federal law may present even greater risk under state law, including longer limitations periods and different damages schemes.

The bottom line

In the Fifth Circuit, you cannot call it a salary if it is just one day’s pay.

If your organization relies on hybrid or day-rate structures for exempt employees, this decision is worth reviewing before the next audit does it for you.

The job requirements were… a lot: craft-beer exams, choreography, flair tricks, social media posts, and a “weight proportional to height” standard. Oh, and a mechanical bull. Eighteen longtime bartenders said the whole thing skewed younger. The court said their lawsuit had a more basic problem.

TL;DR: A New Jersey appellate court affirmed summary judgment on New Jersey Law Against Discrimination (NJLAD) age claims where the record showed the plaintiffs did not complete the employer’s qualification process and, as a result, could not show they were qualified or that the employer took an adverse action against them. The court also found the disparate impact proof was too thin to proceed.

📄 Read the decision

A “bartender entertainer” concept with unusually specific criteria

A casino employer in Atlantic City created ten union “bartender entertainer” positions for a new bar concept and required employees to become “certified” for that bar by meeting a list of qualifications. Those qualifications included passing two alcohol-service courses, completing bull-riding safety training, choreography training, and working flair training, wearing assigned costumes, maintaining a weight proportional to height, serving food from specified outlets, and acting as a “social media ambassador.”

The plaintiffs were eighteen union bartenders. The opinion notes the plaintiffs’ average age was fifty-three, while the average age of bartenders hired to work at the new bar was thirty-three.

They sued under the New Jersey Law Against Discrimination (NJLAD), asserting both disparate treatment and disparate impact age discrimination.

The case turned on a basic failure-to-hire problem: no completed process, no adverse action

The court applied familiar NJLAD principles (including the McDonnell Douglas framework) and focused on the second and third prima facie elements: qualification for the position and an adverse employment action.

The court held the record did not support those elements because no plaintiff completed the application and qualification process and there was no objective evidence they were qualified for the positions. Without that, the employer did not have the opportunity to take an adverse action that could support a claim that age played a determinative role.

The opinion drives that point home plaintiff by plaintiff: many did not sign the interest sheet, did not take the required courses, did not pursue training, or “willfully” or “voluntarily” withdrew based on assumptions about meeting the criteria.

Disparate impact needed more than averages and frustration

Plaintiffs offered expert testimony that maintaining BMI and height-to-weight proportions becomes more difficult with age.

But the court emphasized that a disparate impact claim requires evidence that a facially neutral policy resulted in a significantly disproportionate adverse impact, and the record lacked evidence about how the requirements affected non-plaintiff employees.

The trial judge’s findings, quoted in the opinion, also undercut the “cumulative effect” theory: only a small number of employees had BMI testing in the subset discussed, and none of the plaintiffs were disqualified for failing bull-riding safety training, choreography training, working flair training, or the social media ambassador requirement.

Employer takeaways you can actually use

• If employees must take steps to qualify, make the steps unmistakable. Clear postings, clear prerequisites, and clear timelines give you a record that courts can evaluate without guesswork.
• Document non-selection versus non-participation. A “we didn’t pick you” case is different from a “you didn’t complete the process” case. Preserve the proof of where the process stopped.
• Be cautious with appearance and fitness standards. Even when weight and height are not protected categories, plaintiffs will argue those standards operate as proxies for protected traits. If you use them, be ready to explain why they matter and how they are applied consistently.

The punchline

This was not a decision endorsing mechanical bulls at work. It was a decision reminding everyone that an age case still needs a clean record showing qualification, an actual employment decision, and evidence tying that decision to age.

Many employers rely on hiring assessments to gauge fit. But what if those tools are viewed as unlawful lie detector tests? A recent Massachusetts ruling should give you pause before you rely on a “workstyle” assessment.

TL;DR: A Massachusetts federal court denied a motion to dismiss and allowed a putative class action to proceed, holding that a “workstyle” hiring assessment plausibly fits the state’s Lie Detector Statute (Mass. Gen. Laws ch. 149, § 19B). If your assessments touch on honesty, authenticity, or response consistency, they may create statutory risk.

📄 Read the decision here

How could a workstyle test become a “lie detector”?

Massachusetts law prohibits employers from using lie detector tests in hiring. The statute is not limited to polygraphs. It covers any device or written examination used to detect deception or verify honesty.

In this case, a job applicant alleged that a required “Workstyle Assessment” qualified as a prohibited lie detector test. The assessment asked applicants to rate statements about planning, persistence, reliability, and emotional awareness.

The employer allegedly also told applicants that it used mechanisms to detect suspicious behavior and responses, including attempts to fabricate or use outside assistance. The court held that, at the pleading stage, those allegations were enough to plausibly fit within the statute’s broad definition.

This was not a merits ruling. But the case moves forward.

The statutory language includes “any written examination” used to assist in detecting deception or verifying truthfulness. A personality or workstyle assessment that markets itself as measuring authenticity or flags inconsistent responses can be framed that way.

The class action risk

The case was filed as a putative class action on behalf of applicants who applied for Massachusetts-based roles and, in a subclass, those who completed the assessment.

If the theory sticks, exposure is not limited to one applicant. It extends to every applicant who took the assessment during the limitations period. The statute provides for damages, a minimum award per violation, and attorneys’ fees.

When the alleged violation is embedded in a standardized hiring process, scale is the risk.

Practical employer implications

1. Review what your tools claim to measure. If your pre-hire assessments evaluate honesty, authenticity, or flag deception, consider whether they could fall within broad lie detector definitions, even if that was not your intent.
2. Tighten the language. Do not describe personality or workstyle tools as verifying truthfulness or detecting dishonesty. Marketing copy, applicant disclosures, and internal documentation all matter.
3. Assess exposure at scale. If the tool is used across roles or jurisdictions, a single statutory theory can multiply quickly in a class action.

This ruling is limited to Massachusetts and remains at the pleading stage. But it shows how easily a modern hiring tool can be recast under an old statute. If your assessments touch on honesty or response consistency, review them now, not after a class complaint is filed.

Yesterday, the Department of Labor announced a new proposal on independent contractor classification. If finalized, the proposal would once again reshape how employers evaluate whether a worker is an employee or an independent contractor under federal law.

TL;DR: The DOL’s proposal would rescind the 2024 independent contractor rule and largely return to the 2021 economic reality framework, which gives greater weight to two “core” factors – control and opportunity for profit or loss. The proposal also expands that framework beyond the Fair Labor Standards Act to the Family and Medical Leave Act and the Migrant and Seasonal Agricultural Worker Protection Act, with targeted edits and updated examples.

📄 Read the proposed rule

What the Department is proposing

The DOL is proposing to rescind the 2024 independent contractor rule and replace it with a modified version of the 2021 framework.

The central question would remain the same: is the worker economically dependent on the putative employer, or is the worker truly in business for themself?

The proposal would restore the 2021 structure that identifies two “core” factors as typically more probative than the others:

• The nature and degree of control over the work
• The worker’s opportunity for profit or loss

Under that weighted approach, those two factors generally carry greater analytical significance than the remaining factors.

The Department is not republishing the 2021 rule word-for-word. The proposal includes one substantive edit, a non-substantive edit, and several small modifications to the illustrative examples. But the framework itself — including the emphasis on core factors — tracks the 2021 rule.

More on that in a bit.

First, let’s talk about the rule change in practical terms. To understand the shift, it helps to look at what rule is currently in effect.

How this differs from the current 2024 rule

The rule in effect today uses a six-factor, totality-of-the-circumstances framework and explicitly declines to elevate any factor above the others.

It states that no one factor or subset of factors is necessarily dispositive, that weight depends on the facts and circumstances, and that additional relevant factors may also be considered if they bear on whether the worker is in business for themself.

The current rule also stepped back from the 2021 regulation’s strong statement that actual practice is more relevant than what is contractually or theoretically possible. Instead, it adopted a less categorical approach in which reserved contractual rights may be relevant depending on the facts.

In short, the 2024 rule embraces a flatter balancing test. The proposed rule would swing the pendulum back toward a framework that signals where the analytical weight usually lies.

How the proposal expands on 2021

The most significant expansion compared to the 2021 rule is scope.

The proposal would apply this contractor test not just to wage-and-hour claims under the FLSA, but also to leave rights under the FMLA and protections under the Migrant and Seasonal Agricultural Worker Protection Act. The 2021 rule only applied to the FLSA. This one would stretch the same test across those other federal laws too.

The proposal also updates the regulatory text and adds new examples — including one involving an app-based worker — rather than simply reinstating the 2021 rule as-is.

Employer takeaways

1. Focus first on control and profit opportunity.
If this rule becomes final, those two factors are intended to carry greater weight in most cases. Employers should understand and document how control is exercised and whether the worker genuinely has entrepreneurial opportunity.

2. Align operations with contracts.
Labels alone will not carry the day. If day-to-day practices look like employment, that reality will drive the analysis.

3. Federal compliance is not a 50-state strategy.
Even if a model passes under the federal economic reality test, state wage-hour laws may apply stricter or different standards, including ABC-style tests in some jurisdictions.

4. Multi-state employers should audit proactively.
Now is a good time to review contractor relationships under both the proposed federal framework and the strictest applicable state standards.

Final word

This is still a proposal and will go through notice-and-comment rulemaking. But it is a clear signal that the DOL wants to move away from the current totality-of-the-circumstances approach and back toward a framework that emphasizes control and entrepreneurial risk.

If your contractor relationships are defensible under that structure, the added clarity may be welcome. If they rely on creative labeling or gray-area practices, this is the moment to reassess.

A federal court recently rejected an attempt to force a litigant to turn over information about her use of ChatGPT in a pending employment lawsuit.

Yes. Information about her AI use.

In a civil case, one side moved to compel “all documents and information concerning [the plaintiff’s] use of third-party AI tools in connection with this lawsuit.” The court said no.

TL;DR: A federal court refused to compel discovery into a pro se plaintiff’s use of generative AI in her lawsuit. The judge held the request was late, not relevant or proportional, and aimed at protected work product. That ruling does not conflict with the recent criminal case denying privilege to AI-generated documents created without lawyer involvement or confidentiality safeguards. Different posture. Same doctrine.

📄 Read the recent decision
📄 Read my prior post

Defendants’ attempt to compel AI use information

The defendants wanted everything related to the plaintiff’s use of third-party AI tools in the case.

The plaintiff was pro se.

The court denied the request on multiple grounds.

First, the motion to compel was filed after the discovery deadline. The court enforced its scheduling order.

Second, even setting timing aside, the judge held the request was improper. The defendants were trying to probe the plaintiff’s internal analysis and mental impressions in preparing her case. That is core work product.

Third, the court rejected the argument that using ChatGPT waived protection. Work-product waiver requires disclosure to an adversary or something close to it. Using a generative AI tool, without more, does not meet that standard.

The judge emphasized that ChatGPT and similar programs are “tools, not persons.”

The request was described as a “fishing expedition” and “a distraction from the merits of this case.”

Nothing in the ruling turned on novelty. The court applied familiar principles about relevance and protection of litigation strategy. AI did not change the analysis.

The criminal case that caused the panic

A few weeks earlier, a criminal decision triggered headlines suggesting AI “destroys privilege.”

There, a criminal defendant — on his own — used a public AI platform to generate written analyses of potential defenses after learning he was under investigation.

No lawyer directed the searches. No lawyer supervised the drafting. The platform’s terms did not guarantee confidentiality.

The government later seized the documents. The defendant claimed privilege and work product.

The court rejected both because the documents were not confidential communications with counsel and were not prepared by or for a lawyer.

That case addressed whether standalone AI-generated documents were privileged in the first place.

Conversely, the civil case addressed whether the rules of civil procedure allowed a defendant to obtain a pro se plaintiff’s internal drafting process simply because AI was used.

What About Employees Using AI Before Hiring Counsel?

Now flip it.

If an employee — still employed — uses ChatGPT to complain to HR about discrimination, there is no attorney-client privilege. No lawyer means no attorney-client privilege.

The work-product question is different. Work product can apply even without a lawyer, but only if someone is preparing for litigation — in plain English, if a lawsuit is realistically on the horizon.

An employee raising a workplace complaint while still employed is not automatically preparing for a lawsuit. At that stage, litigation may be possible, but it is not necessarily expected.

If she sends the AI-generated complaint to HR and later sues her employer, that document is discoverable.

The harder question is the underlying AI prompts.

Substance matters.

There is a difference between “What is a hostile work environment?” and “My supervisor cut my bonus on March 3 after I complained about pay equity. Is that retaliation?”

The first looks like general research. The second is a factual narrative.

If an employee is feeding specific facts — names, dates, statements, compensation decisions — into a consumer AI platform while still employed, those prompts may become relevant later, especially if her version of events shifts.

Now you are not just talking about “research.” You may be looking at a contemporaneous factual account.

That does not mean every AI interaction is fair game. Courts still require relevance and proportionality. But when the prompts contain detailed factual descriptions, and credibility becomes an issue, the discovery argument gets stronger.

Pre-lawsuit workplace complaints are not the same thing as protected litigation strategy developed during an active lawsuit.

Courts are likely to treat them differently.

Employer Takeaways

• Consumer AI is not a confidential sandbox. If managers or HR paste sensitive internal analysis into public AI tools without counsel involved, you may be creating discoverable material.

• Lawyer involvement still matters. Materials prepared by or for counsel in anticipation of litigation are on firmer ground than executive freelancing in ChatGPT.

• Employees’ AI prompts can become relevant if they contain detailed factual accounts.

Bottom Line

The panic is overblown. Courts are not blowing up privilege because someone used ChatGPT. But they are not ignoring common sense either. If you pour factual details into a consumer AI platform, don’t be surprised if those facts come back in discovery.

A single slur can sink an employer. It can also survive summary judgment. Two recent federal decisions show why context — especially who said it and how — still controls.

TL;DR: Two federal courts held that a single use of a slur was not enough to get a hostile work environment claim to a jury under Title VII of the Civil Rights Act of 1964 (Title VII). In both cases, the courts focused on whether the remark was isolated, whether it came from a supervisor or co-worker, whether it was tied to a threat, and whether it altered the conditions of employment.

📄 Northern District of Illinois decision (Feb. 17, 2026)
📄 Middle District of Pennsylvania decision (Dec. 31, 2025) and reconsideration denial (Jan. 2026)

Illinois: Co-Worker, Secondhand, No Evidence of Work Impact

In the Illinois case, an employee alleged that a co-worker used an anti-gay slur. He did not personally hear the comment; another employee told him about it. The record reflected he was aware of only one instance.

He also described staring, a brief instance of mocking his walk, and being called a “non-factor.”

The court acknowledged that unambiguously derogatory slurs are egregious and can contribute to a hostile work environment. But several contextual facts mattered:

• The alleged slur was attributed to a co-worker, not a supervisor.

• The plaintiff did not personally hear the remark.

• There were no accompanying threats.

• The record did not show that the conduct interfered with his work performance.

The employer investigated and, at the plaintiff’s request, moved him away from the co-worker.

Looking at the totality of the circumstances, the court concluded the conduct was not sufficiently severe or pervasive to alter the conditions of employment.

Pennsylvania: Directed at the Plaintiff, But Isolated and Not “Extreme”

In the Pennsylvania case, a co-worker used a racial slur within earshot of the plaintiff. She reported the comment immediately and explained why it was racist and demeaning.

Management escalated the issue the same day. A supervisor met with both employees and stated there was zero tolerance for the behavior. The summary judgment record reflected no additional reported racist remarks.

The court agreed the word was offensive. The legal question, however, was whether a single incident was “severe or pervasive” enough to change the terms and conditions of employment.

The court explained that while a single incident can be sufficient in rare and extreme circumstances, this case did not meet that standard. It emphasized:

• The speaker was a co-worker, not a supervisor.

• The comment was not paired with a threat of termination or other job consequence.

• The incident was isolated.

• The record contained no tangible evidence that the comment interfered with the plaintiff’s work performance after that day or injected ongoing hostility into the workplace.

The court cited Third Circuit precedent recognizing that it is rare for a single incident, without more, to be so extreme that it alone creates a hostile work environment.

The Reconsideration Attempt

After summary judgment was granted, the plaintiff moved for reconsideration. She argued the court was wrong to characterize the case as involving one isolated incident and asserted the slur had been used multiple times.

The court denied the motion. It relied on the plaintiff’s own deposition testimony agreeing that the lawsuit arose from a “singular incident” and stated it could not find record evidence supporting additional uses of the word. With no evidentiary basis to expand the facts, the summary judgment ruling stood.

What Actually Matters in Single-Slur Cases

These decisions reinforce a few recurring themes:

Authority matters. A slur from a supervisor — especially when paired with a threat — carries more legal weight than one from a co-worker.

Direction matters. A comment directed at the plaintiff is more serious than one reported secondhand. But even then, courts still ask whether it altered working conditions.

Impact matters. Courts focus on whether the incident changed the terms and conditions of employment, not simply whether it was offensive.

Bottom Line

No employer should ever treat a slur as minor. But in litigation, courts dissect context:

Who said it?
Was it directed at the plaintiff?
Was there a threat?
Was it repeated?
Did it alter the conditions of employment?

In these two cases, the answers to those questions kept the claims from reaching a jury.

At the British Academy Film Awards – better known as the BAFTAs, the U.K.’s version of the Oscars – a man with Tourette’s Syndrome interrupted the ceremony while actors Michael B. Jordan and Delroy Lindo were presenting an award, shouting a racial slur.

That public moment raises a workplace question: If an employee with Tourette’s involuntarily uses the N-word around Black colleagues or the B-word around women, does the Americans with Disabilities Act (ADA) require the employer to keep him in his job?

TL;DR: Tourette’s Syndrome can qualify as a disability under the ADA. But the ADA protects qualified individuals – meaning employees who can perform the essential functions of the job, with or without reasonable accommodation. Courts have held that where a role requires customer-facing interaction and “excellent customer service,” repeated, audible racial slurs and profanity can render an employee not “otherwise qualified.” The ADA may require reassignment to a vacant, non-customer-facing role. It does not require an employer to ignore conduct that undermines essential job functions or creates predictable harassment risk.

📄 Sixth Circuit decision | 📄 District court decision

A Sixth Circuit case involving Tourette’s and retail customers

In a Sixth Circuit Court of Appeals case, the court addressed a delivery merchandiser with Tourette’s Syndrome and coprolalia, a rare symptom that can cause involuntary obscene or socially inappropriate vocalizations.

His job required servicing retail stores, fostering relationships, and providing superior customer service, including “excellent customer service skills.” He worked inside stores open to the public.

The employer received complaints from store managers that the employee was audibly using the N-word and profanity in stores. The employee acknowledged that stress could increase his tics. At one point, his physician restricted him to working only if he was “present with another driver.”

“Excellent customer service” was essential

Both the district court and the Sixth Circuit treated customer service as an essential function of the role.

The courts concluded that an employee who sometimes involuntarily uses audible racial slurs and profanity in customer stores cannot provide “excellent customer service” in that setting. The fact that the conduct was disability-related did not alter the essential-function analysis.

The ADA protects qualified individuals. It does not eliminate essential job requirements.

Accommodation was required – but not the one requested

The employee proposed alternative delivery routes.

• One proposed route was not shown to be vacant at the relevant time.
• Another still involved customer interaction.
• The ADA requires reassignment to a vacant position, not the creation of one.

The employer reassigned him to a vacant warehouse position with no customer interaction. Even though the pay structure differed, the Sixth Circuit held that reassignment to a vacant position can be a reasonable accommodation, including to a lower-paying role if no comparable vacancy exists.

Now apply this to coworkers

Replace “customers in a retail store” with “coworkers in a meeting.”

An employer has obligations under the ADA. It also has obligations under Title VII of the Civil Rights Act of 1964 (Title VII) to prevent race- and sex-based harassment. If disability-related outbursts regularly include racial or sexist slurs, the employer is managing both accommodation duties and harassment risk. In these situations, explore accommodations thoroughly. If a vacant role with limited interaction exists, it might be a reasonable path—but the law does not require creating an entirely isolated job.

The ADA does not require an employer to tolerate conduct that prevents an employee from performing essential functions. Nor does it require permitting conduct that predictably creates a discriminatory workplace for others.

Employer takeaways

1. When slurs are involved, consider both ADA and harassment risks. In most ADA cases, the analysis focuses on whether the employee can perform essential functions with a reasonable accommodation. Here, the conduct itself may create race- or sex-based hostile work environment risk. Employers must think about protecting the disabled employee and protecting coworkers at the same time.
2. Define essential functions clearly. Make sure job descriptions accurately reflect what is truly central to the role. Courts give weight to written descriptions and consistent expectations when deciding whether a function is “essential.”
3. Document what is actually happening. Record complaints, direct observations, and any medical restrictions. In the Sixth Circuit case, undisputed evidence that slurs were audible and understood in stores drove the outcome.
4. Engage in the interactive process in good faith. Explore reasonable accommodations, including reassignment to a vacant non-customer-facing role where available. Keep a record of what was considered and why certain options were not workable.
5. You do not have to eliminate essential functions. The ADA does not require rewriting a job to remove customer or colleague interaction if that interaction is central to the role.

The bottom line

Tourette’s can be a protected disability, but employers must balance accommodations with essential job requirements and a harassment-free workplace for everyone.

Two arguments show up in almost every termination lawsuit: that the employer’s reason changed, and that it didn’t follow its own policy. The Eleventh Circuit recently explained why neither argument, without more, is enough to get a case to a jury.

TL;DR: In a recent Eleventh Circuit decision, the court affirmed summary judgment for an employer on race and age discrimination claims brought by three long-tenured construction employees. Additional consistent reasons do not equal shifting explanations, and failure to follow progressive-discipline procedures, standing alone, does not prove discrimination. What mattered was what the decisionmaker believed at the time.

📄 Read the opinion here

Three brothers and a disputed termination

Three African American brothers worked for a heavy construction contractor for more than twenty-five years. At the time they were sent home, all were over fifty. They held roles including foreman, crane operator, and welder.

Between revenue-producing projects, the company assigned them to non-revenue “special projects.” Management said it observed a decline in their work ethic during that period.

The turning point came after a lunch break. Two of the brothers left the jobsite and, in the decisionmaker’s view, returned late. He sent them home. The third brother left with them and was sent home the following day. For summary judgment purposes, the court treated those actions as terminations.

They sued for race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and 42 U.S.C. § 1981, and for age discrimination under the Age Discrimination in Employment Act (ADEA).

Pretext focuses on the decisionmaker’s belief

So the real question wasn’t whether the employees were late. It was whether the employer’s explanation was a cover for discrimination.

That is what courts mean by pretext.

In discrimination law, pretext means the employer’s stated reason is not the real reason. It is not enough for a plaintiff to show the employer was mistaken. The plaintiff must produce evidence that the employer did not believe the reason it gave and that discrimination was the true motive.

Here, the employees argued they were not late and therefore the employer’s explanation was false. The Eleventh Circuit focused instead on what the decisionmaker believed at the time. Even assuming the employees were correct about the clock, the record showed the decisionmaker perceived them to be late and viewed the incident as part of broader concerns about work ethic.

An employer may act on mistaken information or imperfect judgment, as long as the decision is not motivated by discrimination.

Additional consistent reasons are not shifting explanations

The employees also argued that the employer’s rationale changed. Was it about a late lunch, or about declining work ethic?

The court drew a clear line. Inconsistent explanations can suggest pretext. But providing additional consistent reasons does not demonstrate discrimination. A perceived extended lunch fit within the broader concern about work ethic. The explanation became more detailed; it did not become contradictory.

Policy deviations do not equal discrimination

The employees further contended that the company failed to follow its progressive-discipline policy because there was no documented prior discipline.

The Eleventh Circuit was not persuaded.

Departures from internal procedures can matter. But the mere fact that an employer failed to follow its own procedures does not, by itself, establish discriminatory intent. Without evidence that the policy was applied differently to similarly situated employees, a deviation alone does not prove pretext.

Employer takeaways

1. Pretext turns on what the decisionmaker believed at the time, not on who later proves they were right.
2. Additional consistent reasons do not equal shifting explanations.
3. Deviating from progressive discipline is not automatically unlawful — but uneven application is risky.
4. Consistency in explanation and documentation remains your best defense.

Bottom line

Courts are looking for discriminatory intent, not perfect process. If your reasons are consistent and grounded in documented performance concerns, plaintiffs will have a difficult time converting workplace disputes into viable discrimination claims.

Under basic contract law, yes. But thanks to the Ending Forced Arbitration Act, that may not be the end of the story.

TL;DR: The New Jersey Appellate Division held that a mutual arbitration agreement was valid and enforceable, reversing a trial court that had voided it. But because the employee raised the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) on appeal, the case was remanded to determine whether that federal statute prevents arbitration of her claims.

📄 Read the decision here

A long-time employee signs an arbitration agreement

The employee began working in 1997. More than twenty years later, she electronically signed a mutual arbitration agreement, and later signed an updated version.

The agreement required both sides to arbitrate employment-related claims, including harassment and discrimination. It clearly stated that signing meant giving up the right to a judge or jury trial. It also included a separate opt-out section and gave employees thirty days to opt out.

She did not opt out.

Then came the lawsuit

In late 2022, the employee learned that coworkers and supervisors had been using a private group chat to refer to her and others with racist and sexist slurs. She sued under the New Jersey Law Against Discrimination, claiming hostile work environment and aiding-and-abetting.

The employer moved to dismiss and compel arbitration. She did not initially oppose the motion, and the trial court ordered arbitration.

On reconsideration, however, the trial court reversed itself and ruled the arbitration agreement was not enforceable because it lacked consideration and mutual assent.

The employer appealed.

The agreement survives contract review

The appellate court reversed.

Under New Jersey law, continued at-will employment, along with mutual promises to arbitrate, is sufficient consideration. Her electronic signature demonstrated assent. The waiver language was clear. The opt-out instructions were plainly presented.

Under standard contract principles, the agreement is valid.

But that does not end the analysis.

The federal overlay

For the first time on appeal, the employee argued that even if the agreement is valid, her claims cannot be forced into arbitration under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

Although appellate courts typically refuse to consider arguments raised for the first time on appeal, the court invoked the “great public interest” exception, noting that the scope and application of the EFAA is a matter of significant public importance.

The EFAA, which applies nationwide, allows someone alleging a sexual harassment dispute to choose court instead of arbitration, even if they previously signed an arbitration agreement.

Because the issue was not raised below, there was no factual record. The case was remanded for the trial court to determine whether the EFAA applies.

The employer cleared the state-law contract hurdle. Whether it clears the federal one remains to be seen.

What employers should take away

1. In New Jersey, continued employment can be enough.
If you roll out arbitration to existing at-will employees, NJ courts will treat continued employment and mutual promises as sufficient consideration. Other states may analyze this differently.

2. Clear drafting still controls.
Even in arbitration-skeptical environments, courts will enforce agreements that clearly explain the waiver of the right to sue and provide a meaningful opt-out.

3. The EFAA changes the analysis everywhere.
Nationwide, harassment cases now require a second step: even a valid agreement may be unenforceable if the dispute qualifies as a sexual harassment claim under the statute.

4. Address EFAA early.
If the allegations could be characterized as sexual harassment, evaluate and brief the issue at the motion-to-compel stage. Delay invites remand and added cost.

5. Arbitration is no longer automatic in harassment disputes.
Enforceable under state contract law does not automatically mean arbitrable under federal law.

Bottom line

In New Jersey, a properly drafted arbitration agreement remains enforceable under traditional contract principles.

But nationwide, after the EFAA, enforceable does not automatically mean arbitrable.

Not every workplace conflict that creates turbulence makes it to a jury. This one didn’t. The employer’s investigation held up under the honest-belief doctrine.

TL;DR: The Sixth Circuit affirmed summary judgment for an airline after a flight attendant received a Final Corrective Action Notice for allegedly violating its Workplace Violence Policy. She denied making the alleged threat, and a witness supported her. Still, the court held that the employer acted on an honest belief based on its investigation — and she failed to show pretext under Title VII and Michigan law.

📄 Read the decision

The incident and the discipline

Two flight attendants clashed after landing in Orlando. One reported that the other said, “I will take you down.” The accused employee denied it.

Management gathered statements and escalated the matter to the employer’s Workplace Violence Committee, which had final authority on policy violations.

After reviewing the reports, the Committee concluded the statement was a verbal threat and violated policy. It recommended a Final Corrective Action Notice, removing the employee from her purser-qualified status for 36 months.

The coworker received Written Coaching because the Committee determined she had not violated the violence policy.

Leadership later requested a follow-up review, including consideration of a statement from the flight captain who believed the accused employee acted professionally. The Committee reached the same conclusion.

The Committee did not know the race of the employees involved.

The disciplined employee sued for race discrimination.

Why the claim didn’t take off

The Sixth Circuit assumed she could establish a basic discrimination case and went straight to the real issue: pretext.

To avoid summary judgment, she had to show the employer’s reason:

• Wasn’t true;
• Didn’t actually motivate the discipline; or
• Wasn’t serious enough to justify it.

She couldn’t.

The record showed the company believed she made the statement and disciplined her for violating its workplace violence policy.

That was enough.

The honest belief doctrine lands again

Even if there was a factual dispute about what was actually said, leadership at least held an honest belief that the statement was made.

The coworker reported it.

A manager stated the employee admitted making it shortly after the incident and later reaffirmed that account.

Under Sixth Circuit precedent, an employer does not violate Title VII when it disciplines based on an honestly held belief after a reasonable investigation.

Courts do not re-try workplace investigations. They look for evidence of discrimination.

There wasn’t any.

Three employer takeaways

1️⃣ Investigate and document.

Statements were gathered. A committee reviewed the matter. Leadership reconsidered it. That process mattered.

A documented investigation strengthens the honest-belief defense.

2️⃣ Apply policy consistently.

The employer distinguished between conduct that violated its Workplace Violence Policy and conduct that violated other workplace standards. That distinction supported the different discipline.

Clarity and consistency reduce risk.

3️⃣ Disputed facts aren’t enough.

She denied making the statement. A captain supported her. Leadership reconsidered.

Still no triable issue.

Title VII requires proof of intentional discrimination — not proof the employer might have been mistaken.

Final approach

When an employer investigates, applies a neutral policy, and acts on an honestly held belief, summary judgment is possible even when the employee disputes the facts.

She insisted the investigation got it wrong. The court wasn’t persuaded.

Surely that can’t be enough to win?

It was. And don’t call it Shirley.

A recent Southern District of New York decision is being described as “AI destroys privilege.”

That’s not what the court held. But employers using consumer AI tools in connection with employment decisions should pay attention.

TL;DR: In United States v. Heppner, the court held that documents a criminal defendant generated using Anthropic’s Claude were not protected by attorney-client privilege or work product because the tool was not an attorney, its terms disclaimed confidentiality, and the documents were not prepared by or at the direction of counsel. The ruling applies traditional privilege principles. It does not create a blanket rule against AI.

📄 Read the opinion.

What Happened in Heppner

After receiving a grand jury subpoena and learning he was a target of a federal investigation, the defendant used Claude to generate written reports outlining potential defense arguments.

He did this on his own. Counsel did not direct the use of the tool.

When the government later seized the documents, he claimed attorney-client privilege and work product protection.

The court rejected both.

On privilege, the court emphasized that Claude is not an attorney and that the platform’s terms allowed collection and use of user inputs. Because the tool disclaimed any expectation of privacy, the court found no reasonable expectation of confidentiality.

On work product, the court focused on authorship. The materials were created by the defendant “on his own volition.” They were not prepared by or for counsel and did not reflect counsel’s mental impressions.

The court also noted that the analysis might have been different if counsel had directed the use of the tool or if the platform functioned as a confidential agent. Those facts were not present.

This was a disclosure problem and a lawyer-involvement problem. Not an AI problem.

Now bring this into the workplace.

Scenario 1: HR Uses a Public AI Tool to Draft a Termination

An HR manager pastes performance notes, complaint history, and leave information into ChatGPT or Claude to refine a termination memo.

No lawyer is involved.

There is no privilege. There never was. Attorney-client privilege requires seeking legal advice. Work product requires preparation by or for counsel in anticipation of litigation.

Pasting termination rationales into consumer AI tools makes those materials discoverable and shifts sensitive employee data into a third-party system you don’t control.

Scenario 2: Employer Receives a Demand Letter and Uses Claude to Prepare for a Call With Counsel

A former employee sends a demand letter threatening litigation. The employer schedules a call with outside counsel. Before that call, HR uses Claude to summarize allegations, organize facts, and outline issues to discuss with counsel.

Two doctrines matter here.

Attorney-client privilege.
Privilege depends on whether the communication was made for the purpose of obtaining legal advice from a lawyer. If Claude is used simply to organize information before speaking with counsel, that supports the argument that the purpose relates to legal advice. But if the employer asks Claude to analyze liability, assess exposure, or recommend defenses, it is seeking legal advice from a non-lawyer third party. That communication is not privileged at inception. Sending the output to counsel later does not retroactively create privilege.

Work product.
Materials prepared in anticipation of litigation can qualify for work product protection. Using Claude to prepare for a call with counsel strengthens the anticipation-of-litigation argument.

But disclosure still matters. If the employer uploads litigation-related analysis to a platform operating under non-confidential consumer terms, a court could treat that as voluntary third-party disclosure that waives protection.

Preparing for a call with counsel helps. It does not override the requirement of confidentiality.

Scenario 3: Counsel Uses Enterprise AI to Prepare

Now change the facts.

Outside counsel uses an enterprise AI platform under terms that contractually preserve confidentiality, segregate client data, and prohibit training on client inputs. Counsel uses it to prepare litigation strategy for that same call.

That is a different posture.

Work product protects materials prepared by or for counsel in anticipation of litigation. Courts routinely hold that disclosure to a lawyer’s non-lawyer agent does not waive protection where confidentiality is preserved and the agent assists in the representation.

With those safeguards in place, this becomes a standard work product analysis.

The Takeaway

Privilege and work product rise or fall on confidentiality and lawyer involvement. If you disclose strategy to a consumer AI platform operating under non-confidential terms, a court may treat that as voluntary third-party disclosure. If counsel uses an AI tool under contractual confidentiality and data segregation safeguards, the analysis looks like any other litigation-vendor scenario.

Remote work policies are tightening. But the Americans with Disabilities Act did not disappear when companies decided the office feels collaborative again.

Last week, the U.S. Equal Employment Opportunity Commission issued federal-sector guidance on telework accommodations for employees with disabilities. Although written for federal agencies under the Rehabilitation Act, that statute incorporates ADA standards. So if you are a private employer navigating return-to-office mandates, this guidance is directly relevant.

TL;DR: In response to a federal return-to-office directive, the EEOC issued guidance explaining how agencies must balance in-person work requirements with their duty to accommodate disabilities. For private employers, the message is clear: no blanket revocations, individualized assessment is mandatory, telework can be a reasonable accommodation (but not automatic), and return-to-office mandates do not override the ADA.

📄 Read the EEOC guidance here.

Why the EEOC Issued This Guidance

The President directed federal agencies to return employees to in-person work on a full-time basis. Agencies immediately faced a compliance problem: how do you implement that directive while still honoring disability accommodation obligations?

The EEOC issued this FAQ to walk agencies through when telework must be continued, when it may be modified, and when it may be rescinded. Because the Rehabilitation Act incorporates ADA standards, the analysis mirrors what private employers must already do.

No blanket “everyone back” decisions

The EEOC cautions agencies against rescinding telework accommodations across the board. Each case requires an individualized assessment.

Private-sector translation: If you announce a universal return-to-office policy and automatically terminate all remote ADA accommodations, you are increasing litigation risk.

The interactive process still applies. Employers must evaluate whether telework remains necessary to enable performance of essential functions or whether an effective in-office alternative exists.

Telework may be reasonable, but it is not automatic

The guidance confirms that telework can qualify as a reasonable accommodation when it enables an employee to perform essential job functions. It also emphasizes that employers retain discretion to choose among effective accommodations.

An employee is not entitled to a preferred accommodation indefinitely. If assistive devices, environmental modifications, schedule flexibility, or job restructuring would be effective in the office, an employer may choose those options instead of telework.

If telework is the only effective way to enable performance of essential functions, however, it likely must be provided unless it creates an undue hardship.

Essential functions still control

The EEOC makes clear that temporarily excusing in-office duties during COVID did not permanently eliminate those duties.

Employers may restore essential functions as operations normalize. But they should be prepared to demonstrate that on-site presence is genuinely essential today. Courts will examine current job requirements, not emergency-era practices.

Roles requiring supervision, teamwork, and in-person collaboration may support an essential on-site argument. Output-driven, independent roles may present a harder case.

Anxiety does not make telework automatic

The guidance addresses employees who report anxiety or similar disability-related symptoms when working in the office. The key inquiry is whether those symptoms create a material barrier to performing essential job functions or accessing a benefit or privilege of employment.

The ADA does not guarantee a stress-free workplace. If an employee can perform satisfactorily on-site, that is strong evidence that anxiety is not materially limiting workplace participation.

If there is a demonstrated barrier, employers must consider accommodation. But telework is required only if other effective in-office measures would not work and working remotely would not cause undue hardship. The guidance points to alternatives such as environmental adjustments, assistive devices, modified schedules, or other targeted changes.

Commute challenges usually are not your obligation

The EEOC explains that employers generally are not required to eliminate commuting barriers outside their control.

Flexible scheduling may sometimes be reasonable. Permanent telework solely to eliminate a long or difficult commute usually is not required under the ADA.

This matters for employers dealing with pandemic relocations.

You can reevaluate prior accommodations

Previously granted telework accommodations may be reevaluated when circumstances change. Employers may request updated medical documentation and reassess whether telework remains necessary or whether an effective alternative exists.

If telework was granted during COVID with minimal documentation, employers may revisit those decisions. Prior flexibility does not permanently raise the legal standard. Reevaluation must remain evidence-based and individualized.

Retaliation remains a risk

Employees who request or receive accommodations are protected from retaliation.

Managers who treat telework requesters as disloyal or uncommitted create avoidable exposure. Return-to-office enforcement and ADA compliance must be handled with the same discipline.

Bottom line

Return to office is a business decision. How you handle disability accommodation requests is a legal one. Employers that align the two reduce risk. Those that do not invite it.

COVID vaccination mandates may be behind us, but the lawsuits they generated are still shaping how courts analyze religious accommodation under Title VII. This Third Circuit decision is a reminder that an accommodation can still be challenged when it allegedly creates a new burden.

TL;DR: The Third Circuit revived Title VII religious accommodation claims challenging an employer’s vaccination-policy accommodation. The employees did not claim a religious objection to testing itself, but alleged the accommodation required twice-weekly nasal swab testing using swabs sterilized with ethylene oxide, which they characterized as a carcinogen. At the motion-to-dismiss stage, the court held those allegations were enough to proceed to discovery on whether the accommodation could be unreasonable under the circumstances.

📄 Read the Third Circuit’s decision

The accommodation that sparked the dispute

During the COVID-19 pandemic, a hospital system implemented a mandatory vaccination policy. According to the complaint, employees who objected on religious grounds could receive an exemption only if they submitted to twice-weekly nasal swab testing.

The employees alleged the swabs were sterilized with ethylene oxide, which they characterized as a carcinogen, and asked to be excused from testing. The employer denied those requests, and more than 100 employees sued under Title VII.

Why the accommodation itself became the problem

The district court dismissed the case on the ground that the employees’ objection to nasal-swab testing was medical, not religious, and therefore could not support a Title VII claim. On that point, the Third Circuit largely agreed.

The court held that the employees did not allege a religious objection to nasal-swab testing itself, and that such a conflict could not reasonably be inferred from the complaint. Standing alone, that would normally end the analysis.

But the Third Circuit emphasized that Title VII does not ask only whether an accommodation avoids a direct conflict with religious belief. It also asks whether the accommodation is reasonable under the circumstances. And at the pleading stage, that inquiry focuses on the burden the accommodation allegedly places on the employee.

Here, the employees alleged that the accommodation required twice-weekly testing using swabs sterilized with ethylene oxide, which they characterized as a carcinogen. Accepting those allegations as true, the court concluded the employees had sufficiently alleged that the accommodation itself could be unreasonable, even if it eliminated the religious conflict with vaccination.

What the court explicitly left for another day

The court did not hold that the accommodation was unreasonable. It did not weigh medical evidence or decide whether ethylene oxide exposure from nasal swabs poses any real danger.

A dissent would have affirmed dismissal, reasoning that testing eliminated the religious conflict and that medical concerns about testing should not support a Title VII accommodation claim. The majority disagreed, but only at the pleading stage.

The practical lesson for employers making accommodation decisions

• How employers handle accommodations often shapes risk long before lawyers get involved. Early decisions about process, communication, and follow-through can matter as much as the accommodation itself.
• Offering an alternative doesn’t end the process if employees can point to a real concern with the alternative itself. Employers should continue to engage in good faith, evaluate that concern, and respond accordingly.
• Reasonableness includes how an accommodation works in practice. Courts may look beyond policy design to how the accommodation actually affects employees day to day.
• Health and safety concerns tied to accommodations should be addressed and documented. Even if those concerns later prove unfounded, failing to engage with them can create avoidable risk.
• Labeling an objection as “medical” doesn’t always shut things down. When concerns relate to the accommodation itself, employers should expect closer scrutiny.

The takeaway employers should not miss

This decision is about pleadings, not proof. When an accommodation allegedly creates a new burden, courts are likely to let the record develop before deciding who is right.

Employees do not need to use legal buzzwords to be protected from retaliation. But they do need to complain about the right thing.
General workplace grievances are not the same as opposing unlawful discrimination, and courts continue to enforce that distinction.

TL;DR: An employee’s internal grievance about unfair treatment and shifting management expectations was not protected activity under Title VII of the Civil Rights Act of 1964 (Title VII) because it did not allege discrimination. Without protected activity, a retaliation claim fails before causation is even considered.

📄 Read the decision

The grievance and what came next

The employee worked for the Federal Aviation Administration as an Airway Transportation System Specialist. In December 2014, he filed an internal grievance against his supervisor.

The grievance complained about management style, not discrimination. Specifically, it alleged that the supervisor:

• held him responsible for work assigned to other employees, and
• created hostility and confusion by routinely changing expectations and directions.

The grievance framed the dispute as unfair treatment and poor management. It did not allege discrimination based on race, age, or any other protected characteristic.

Several months later, the employee failed to complete required on-the-job training by a supervisor-imposed deadline. The supervisor had extended the deadline and repeatedly reminded him to complete the training. When the employee claimed he had finished the training, the supervisor confirmed that he had not.

After consulting management and human resources, the FAA suspended the employee for two weeks.

Why the retaliation claim failed

The employee argued that the suspension was retaliation for his earlier grievance. The court rejected that argument at the threshold.

To pursue a retaliation claim under Title VII, an employee must first show that he engaged in statutorily protected activity, meaning that he complained about conduct he reasonably believed was unlawful discrimination.

This grievance did not do that.

It challenged accountability, workload, and shifting expectations. It did not oppose discrimination or identify any protected characteristic. Complaints about unfair treatment, standing alone, are not protected activity under Title VII.

Because the employee never engaged in protected activity, the retaliation claim failed at step one. The court did not need to analyze causation or pretext.

Takeaways for HR

• Take every complaint seriously, regardless of how it is framed. Complaints about unfairness, workload, or management decisions still warrant attention, investigation, and follow-up, even if they do not expressly allege discrimination.
• Document what the employee actually says. Accurate, contemporaneous documentation of the substance of a complaint matters. Retaliation analysis later will turn on what was communicated, not what was inferred.
• Escalate when discrimination is alleged or reasonably implicated. If a complaint references protected characteristics or suggests bias, treat it as a potential discrimination issue and follow established escalation protocols.
• Train managers on how to route complaints. Managers should know to elevate concerns to HR, avoid dismissive responses, and refrain from characterizing complaints in ways that could create risk.
• Remember that legal analysis comes later. Courts may ultimately determine whether a complaint qualifies as protected activity, but employers reduce risk by responding consistently and thoughtfully to all employee concerns.

Bottom line

Complaining that something is unfair is not the same as opposing unlawful discrimination.
Without protected activity, a retaliation claim never gets off the ground.

Constructive discharge is a high bar. But an ultimatum, delivered the wrong way and on the wrong timeline, can be enough to clear it.

That was the lesson from a recent federal court decision involving a pregnant employee who was told she could either keep working under at-will conditions or take six weeks of pay and leave immediately. The employer framed it as a choice. The court said a jury could see it as no choice at all.

TL;DR: A pregnant employee who resigned after being given a stay-or-leave ultimatum survived summary judgment because a jury could find she was constructively discharged. The court held that the short decision window, supervisor comments suggesting termination was inevitable, and surrounding context could support treating the resignation as an adverse employment action rather than a voluntary quit.

📄 Read the decision here

The ultimatum

The employee worked for a law firm and later informed supervisors that she was pregnant. Months later, after internal communications raising performance concerns and discussing her upcoming maternity leave, management presented her with an ultimatum: stay and give “100 percent” while remaining at-will, or take six weeks of pay and leave effective immediately.

She chose the severance option the next morning.

The employer argued that ended the story. She resigned voluntarily, under the same at-will conditions that had always applied.

The court disagreed that it could end the case there.

The constructive-discharge framework

Constructive discharge requires more than pressure or dissatisfaction. The standard is objective and demanding. The question is whether working conditions were so intolerable that a reasonable person would feel compelled to resign.

Critically, the inquiry is not whether the employer caused the resignation, but whether the employee had any other reasonable choice but to resign in light of the employer’s actions.

That distinction is where employers often lose the thread.

Why this “choice” could look like no choice at all

The employer relied on precedent holding that offering an alternative to quitting cuts against constructive discharge. The court acknowledged that rule, but found factual differences that could lead a jury to reach a different conclusion here.

First, timing. The employee was given only a day to decide. Whether an employee is afforded a reasonable amount of time to choose is a recognized factor in constructive-discharge analysis. A rushed deadline can look less like a choice and more like pressure.

Second, supervisor comments. The employee testified that she told her supervisor quitting felt like “the safer choice,” and the supervisor agreed. A jury could reasonably view that response as confirmation that staying meant termination, not a meaningful opportunity to continue working.

Third, the surrounding context. The court pointed to internal communications suggesting termination was inevitable, with discussion focused on timing because of maternity-leave optics. That backdrop matters. It can make an ultimatum feel like a formality rather than a real decision point.

Taken together, the court held there was sufficient evidence for a jury to find the employee was effectively told to quit or be fired, a recognized path to constructive discharge.

HR checklist to avoid a constructive-discharge mess

• Do not present “choices” you don’t actually intend to honor. If staying is not a real option, framing it as one creates risk instead of reducing it.

• Build in breathing room. Give employees meaningful time to consider options. Compressed timelines read as pressure, not voluntariness.

• If separation is on the table, and a separation agreement is in play, transparency matters. Surprise release language delivered after a rushed ultimatum can reinforce the perception that resignation was not truly voluntary. Give the employee time to review and consult counsel.

• Control the manager script. Train managers to avoid language that endorses quitting (“that’s probably safer,” “I’d do the same”). Those comments can become Exhibit A.

• Keep performance management and exit talks separate. Mixing “you’re under scrutiny” with “you can leave with pay” muddies intent and fuels constructive-discharge arguments.

The bottom line

If an employer wants a resignation to look voluntary, it should actually be voluntary. A rushed ultimatum, paired with signals that staying is pointless, is a risky way to get there.

When employees say, “You helped him when he was injured but refused to help me,” it sounds like discrimination. It also sounds like a failure-to-accommodate dispute. A recent Ninth Circuit decision shows why that framing matters, and why getting it wrong can sink the case before it ever reaches a jury.

TL;DR: Female employees claimed that their employer refused to accommodate their mobility limitations while informally accommodating injured male employees. The Ninth Circuit affirmed summary judgment for the employer, holding that the plaintiffs failed to establish a prima facie case of sex discrimination because they could not identify similarly situated male comparators with materially similar jobs and duties who were treated more favorably. Even assuming that an alleged refusal to accommodate could qualify as an adverse action under Title VII, comparator proof still did the heavy lifting.

📄 Read the Ninth Circuit’s decision

The plaintiffs’ theory

The plaintiffs sued their employer under Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act. Their claim was not framed as a disability accommodation case under the Americans with Disabilities Act. Instead, they alleged sex discrimination.

According to the plaintiffs, the employer informally accommodated male employees with mobility-related injuries but refused to provide similar flexibility to women. That differential treatment, they argued, amounted to unlawful sex bias.

Why the court did not bite

The Ninth Circuit analyzed the claims under the McDonnell Douglas framework. To survive summary judgment, the plaintiffs had to establish a prima facie case, including that similarly situated male employees were treated more favorably.

The court was careful on the “adverse action” question. Under California law, an employer’s refusal to accommodate is not a cognizable adverse employment action in a sex discrimination case. As for Title VII, the court assumed without deciding that an alleged refusal to accommodate could qualify as an adverse action.

That assumption did not save the claims.

The comparator problem

The case turned on comparators. To be similarly situated, employees must be similar in all material respects. That means similar jobs, similar duties, and similar conduct.

The plaintiffs did not get there. Their allegations about male comparators were thin and lacked specifics about job responsibilities, performance, or whether the men shared a common core of tasks with the plaintiffs. General assertions that male employees received flexibility were not enough to create a triable issue of fact.

Without evidence of truly comparable male employees who were treated better, the sex discrimination claims failed at step one.

The employer takeaway

Even when employees point to physical limitations, a sex discrimination claim still turns on how flexibility was granted to comparable coworkers.

Courts will demand detail. Vague references to flexibility or informal accommodations will not substitute for apples-to-apples comparator evidence.

The bottom line: perception and fairness concerns may drive complaints, but discrimination law still turns on proof. Without real comparators, claims like these never get off the ground.

Stop me if you’ve heard this before: it’s the Monday after the Super Bowl, an employee with approved intermittent FMLA leave asks for a personal day, gets denied, switches to FMLA, and later finds himself terminated for “abuse.”

That is not a hypothetical. It is essentially what happened in a recent decision out of the Southern District of West Virginia, where a federal court refused to throw out an employee’s FMLA retaliation claim and sent the case to a jury.

TL;DR: An employer terminated an employee for alleged FMLA misuse based primarily on a single call-in conversation, without determining whether the leave was actually used for an FMLA-qualifying purpose. The court denied summary judgment on the retaliation claim, finding that a jury could conclude the employer’s decision-making process was “unworthy of credence.” When FMLA discipline rests on assumptions instead of investigation, summary judgment often disappears.

📄 Read the court’s decision here

How the leave request unfolded

The employee had an approved intermittent FMLA certification for chronic kidney stones. The medical certification permitted intermittent leave up to three times per month for one day per episode.

When the employee called in seeking time off, he initially asked for a personal day. That request was denied. During the same call, he then requested FMLA leave. In explaining the request, he mentioned that his children were starting a new school.

During an internal investigation, the employee later stated that his medical condition had begun to flare up, that he believed he needed to see a doctor, and that he ultimately took several days of medical leave. He also provided a doctor’s note confirming that he was under a physician’s care during that period.

Why the employer treated this as FMLA misuse

The employer focused almost entirely on the phone call. In its view, the reference to the employee’s children established that the leave was requested for an unapproved reason.

During the employer’s internal investigation, the company’s FMLA manager testified that the call itself made the misuse so clear that there was no need to determine whether the leave was actually used for FMLA protection or for a qualifying medical purpose.

After the investigation, the employer concluded the employee had misused FMLA leave and terminated his employment.

Why the court let the retaliation claim proceed

At this stage, the employee did not have to prove retaliation. He only had to show that a jury could reasonably question the employer’s explanation for the termination.

The employer said it fired the employee for misusing FMLA leave. But under settled law, that explanation can unravel if the employer failed to make a reasonably informed and considered decision before acting.

Here, the employer relied on the phone call alone and did not determine whether the leave was actually used for an FMLA-qualifying medical purpose. That mattered.

The employer also had other information at the time – an approved intermittent FMLA certification, the employee’s testimony during the internal investigative hearing that his condition had flared up, and a doctor’s note confirming treatment. A jury could reasonably conclude that disregarding that context rendered the employer’s decision-making process unworthy of credence.

That was enough to keep the retaliation claim alive.

Practical takeaways for employers and HR

This decision is not about excusing sloppy FMLA requests. It is about how employers evaluate suspected abuse.

• An employee voicemail can be dispositive if it clearly shows non-qualifying leave. But when it does not, employers still need to assess whether the leave was FMLA-qualifying.
• Imperfect phrasing does not defeat FMLA protection. Employees may articulate requests awkwardly or without using the letters F-M-L-A while still seeking covered leave.
• Assume your process will be scrutinized. When decision-makers testify that they did not need to determine whether leave was protected, summary judgment becomes difficult to sustain.

Bottom line

Accusing an employee of FMLA abuse requires more than a bad soundbite. It requires a defensible, informed process. Skipping that step does not just increase litigation risk – it hands a jury the final say.

Me? I probably would not tell the EEOC that I removed a Black employee from work because of her “introduction of race” into the workplace. Especially after she complained about race discrimination triggered by a question about attending a Black Lives Matter protest.

But that is exactly what happened here.

And it is exactly why the employer lost on retaliation at summary judgment.

TL;DR: After a Black employee complained about a racially charged workplace comment involving a Black Lives Matter protest, management immediately placed her on unpaid administrative leave. During the EEOC’s investigation, the employer stated that the decision to remove her from work was for her “introduction of race” into the workplace. The court held that explanation itself was direct evidence of retaliation, granted summary judgment on liability, and left damages for later proceedings.

📄 Read the decision

A race-related comment, followed by immediate unpaid leave

The employee worked as a dental assistant at a community health clinic. During the summer of 2020, amid nationwide racial justice protests, the clinic’s dental director asked her whether she had attended a Black Lives Matter protest. She was the only Black employee present.

She testified that the question upset and humiliated her and that she believed it was racially charged. She complained internally.

Management’s response was swift and explicit. The CEO sent a text message placing the employee on unpaid administrative leave pending an investigation. She was never returned to work.

Later, during the EEOC’s investigation, the employer explained that the employee had been removed from work because of her “introduction of race” into the workplace. The employer also pointed to alleged performance issues as an alternative justification.

That explanation became the problem.

Why this was not a close retaliation case

Most retaliation cases at summary judgment rise or fall under the McDonnell Douglas burden-shifting framework. Courts ask whether the employer articulated a legitimate reason and whether the employee can show pretext.

This case did not stay in that lane.

The court held that the employer’s own explanation to the EEOC qualified as direct evidence of retaliatory motive. No inference was required. The employee complained about what she perceived as race discrimination, and management said she was removed from work because she brought race into the workplace.

That alone was enough for the court to resolve liability on retaliation.

The performance defense did not save the employer

The employer argued that the employee was terminated for performance-related reasons. The court was unmoved.

When an employer offers multiple explanations, and one of them directly ties an adverse action to protected activity, summary judgment becomes difficult. That is especially true where the adverse action follows immediately after the complaint.

This was not a credibility contest. The court relied on the employer’s own words.

What employers should take away

• Agency explanations are evidence. Statements to the EEOC are not advocacy exercises. They are part of the record and will be read closely.

• Shifting explanations make things worse, not better. Inconsistent or evolving reasons are classic evidence of pretext and often keep retaliation claims alive even when the employer thinks it has cleaned things up.

• Performance justifications do not erase retaliatory motive. Once direct evidence appears in the record, the burden shifts hard.

• Raising race at work is legally loaded. And retaliating after a complaint is where employers get burned.

• Unpaid administrative leave still counts. Taking someone off the schedule without pay is an adverse employment action, not a neutral pause button.

Bottom line

Retaliation cases are often won or lost in emails, texts, and agency position statements.

This one was lost because the employer treated a race complaint as the problem itself.

And then said so out loud.

Performance improvement plans are often treated as neutral management tools. This case shows how quickly a PIP can become the centerpiece of a retaliation claim once an employee raises equity concerns.

TL;DR: After an employee raised “boys’ club” concerns, her employer placed her on a performance improvement plan about two months later, followed by a negative rating, denial of a raise and bonus, and eventual termination. The court denied summary judgment on retaliation, holding that a jury could find the PIP itself was a materially adverse action and that the sequence of discipline could support a retaliatory pattern.

📄 Read the decision

Informal complaints, then performance management

The employee had worked for the company for more than twenty years with no prior corrective action or documented performance issues. That changed after she began reporting to a new supervisor.

According to the record, she complained that she was being excluded from meetings, denied support, and treated differently than male peers. In conversations with management and HR, she described the environment as a “boys’ club.” In at least one discussion, her supervisor understood the comment to mean she felt excluded from a clique of managers who were not providing her appropriate resources.

About two months later, the employer placed her on a performance improvement plan, citing cost, inventory, and communication issues. The PIP was initially set for three weeks, shorter than the company’s typical timeframe, and later extended.

Over the following months, the employee received a below-target performance rating, was denied a raise and bonus, and was ultimately terminated. The employer cited performance issues across several client accounts, including billing and inventory problems and the employee’s failure to timely forward a client email raising concerns.

When “boys’ club” becomes protected activity

The employer argued that references to a “boys’ club” were too vague to constitute protected activity and reflected only general workplace frustration. According to the employer, the employee never clearly opposed unlawful discrimination.

The court rejected that argument at summary judgment. It held that a jury could find decisionmakers understood the “boys’ club” comments as complaints about favorable treatment of male employees. The court emphasized that retaliation liability can attach even if an employer mistakenly believes an employee engaged in protected activity and acts on that belief.

That perception – how management understood the complaint – was enough to move the retaliation claim forward.

Why the PIP mattered

The employer argued that too much time passed between the employee’s last complaint and her termination to support retaliation. The court agreed that the several-month gap, standing alone, was not enough.

But termination was not the only action at issue. The court emphasized a point employers often underestimate: for retaliation claims, a performance improvement plan can itself be a materially adverse employment action.

The retaliation standard is broader than the discrimination standard. An action may qualify if it could dissuade a reasonable employee from making or supporting a discrimination complaint. Applying that standard, the court held a jury could find placement on a PIP would have that effect.

That shifted the timing analysis. The roughly two-month gap between the complaints and the PIP was close enough to permit an inference of causation. The court evaluated the sequence as a whole – the PIP, the negative rating, the denial of compensation, and the termination – rather than viewing each step in isolation.

Employer takeaways

• Performance management can continue after a complaint. Employees do not become discipline-proof after raising concerns, but HR should anticipate closer scrutiny and plan accordingly.
• Post-complaint PIPs deserve extra care. In retaliation cases, a PIP may be treated as materially adverse if it could discourage a reasonable employee from speaking up.
• Timing is measured across the sequence, not just at termination. Courts may analyze causation from the complaint to the PIP and through later performance actions.
• Process consistency matters more than labels. Shortened PIP timelines, incomplete follow-through, deviations from HR guidance, or inconsistent internal opportunities are what create jury risk.

The bottom line

This case is not about chilling warranted discipline. It is about how performance management is evaluated once an employee raises equity concerns. When a PIP closely follows those concerns, courts are far more willing to let a jury decide whether the employer’s process crossed into retaliation.

Not every denied accommodation becomes a viable lawsuit. Courts are still asking a simple threshold question before a discrimination case goes anywhere.

TL;DR: In a recent Eleventh Circuit decision, the court affirmed summary judgment for the employer, holding that a denied religious accommodation does not violate Title VII unless it results in a real, non-speculative change to a term or condition of employment. Where the employee kept working, kept praying, and suffered no discipline, pay loss, or job change, there was no actionable adverse employment action.

📄 Read the Eleventh Circuit’s decision

The accommodation request and what happened next

The employee worked on a moving assembly line and requested a religious accommodation to take prayer breaks at specific times during the day. Because prayer times are based on the sun’s position, the timing changed daily and often fell outside scheduled breaks.

A supervisor observed the employee praying during an unscheduled break and told him he was not permitted to take those additional breaks. The accommodation was denied.

But the denial did not change what followed.

The employee continued taking unscheduled prayer breaks. He never missed a prayer. He was never disciplined, written up, reassigned, docked pay, or terminated. His duties, schedule, and compensation stayed the same.

Those facts decided the case.

The only question that mattered

The court focused on a single issue under Title VII: did the denial of the accommodation actually change a term or condition of employment?

Here, nothing did.

The employee stayed in the same role, on the same schedule, for the same pay. He kept praying. He suffered no discipline or penalty of any kind.

The employee argued that the risk of discipline itself was harm. The court rejected that argument. Speculation is not an adverse employment action. Risk of discipline is not discipline.

Emotional distress, anxiety, or a perceived loss of status, without a concrete job consequence, were not enough.

Title VII still requires something tangible to change. Here, it did not.

Practical takeaways for employers

• A denied religious accommodation, without real job consequences, is not actionable under Title VII.
• Fear of discipline or hypothetical outcomes does not substitute for an adverse employment action.
• Courts focus on what actually changed at work, not how the denial felt.
• Discipline, pay loss, schedule changes, or diminished duties would likely change the analysis.

Bottom line

This decision is not a free pass to deny religious accommodations. It reinforces a narrower point about where Title VII liability begins.

Courts still look for consequences, not just conflict. If nothing about the job actually changes, courts aren’t going to call it discrimination.

Pay equity disputes are rarely about a single salary decision. They turn on whether an employer’s explanation for a pay gap holds together once the facts are examined.

A recent Seventh Circuit decision shows how reorganizations that blend promotions and transfers into the same role can expose cracks in that explanation.

TL;DR: After a company reorganized its sales department and created a new role, two female employees alleged they were paid less than male counterparts performing the same job. The Seventh Circuit reversed summary judgment on Equal Pay Act and Title VII pay claims, but only as to comparisons with male employees who were promoted into the role. The employer prevailed as to transferred employees whose salaries were maintained, but factual disputes over the timing and amount of raises for promoted comparators required a jury to decide the rest.

📄 Read the decision

A reorganization created a new role – and a pay gap

In 2021, the employer reorganized its sales department and created a new Key Account Director role across two divisions. The position carried a higher paygrade than the roles the plaintiffs previously held.

The plaintiffs were promoted into the new role from lower-graded positions with base salaries in the low-to-mid $90,000 range. They did not receive raises at that time. Their salaries were later increased to $98,000, effective December 26, 2021.

At the same time, nine male employees on another side of the business moved into the same role. Two were promoted. Seven were transferred. The transferred employees received no raises and retained salaries ranging from just over $100,000 to well into the $140,000s.

The employer’s explanation

To justify the differences in pay, the employer pointed to how employees entered the new role. According to the employer, employees who were transferred retained their existing salaries, while employees who were promoted received raises.

That distinction framed how the court analyzed both pay claims.

Why timing mattered

On December 6, 2021, the plaintiffs and other employees raised concerns with Human Resources about pay disparities among employees holding the new role. Management said it would investigate. Ten days later, the employer announced salary increases for the plaintiffs, effective December 26.

That sequence mattered. If promotions came with raises, a jury could reasonably conclude the plaintiffs should have received a raise when they assumed the new role, not only after they complained.

Equal Pay Act and Title VII: same facts, different burdens

Both pay claims turned on the same factual divide, even though the legal standards differ.

Transfers.
For the men who were transferred into the new role without raises, the court held summary judgment was appropriate. Maintaining prior salary through a transfer was a permissible, sex-neutral approach, and there was no evidence that the underlying salary history reflected discrimination. The employer therefore prevailed under both statutes as to those comparisons.

Promotions.
For the men who were promoted into the role, the analysis changed. The timing allowed a jury to find that promoted male employees received raises immediately upon promotion, while the plaintiffs received raises only after raising concerns. The employer also failed to explain why one promoted male employee landed at a substantially higher salary than the plaintiffs.

Those unresolved questions prevented summary judgment under both statutes. Under the Equal Pay Act, the employer could not establish its explanation as a matter of law. Under Title VII, the same inconsistencies could support an inference that the explanation was pretextual.

Employer takeaways

• Decide in advance how pay will be set in reorganizations.
  If transfers retain salary and promotions trigger raises, define that rule clearly and apply it consistently.

• Align timing with your stated rationale.
  If promotions come with raises, make sure compensation changes occur when the promotion takes effect, not only after concerns are raised.

• Document the reason for differences at the time decisions are made.
  When employees in the same role land at different pay levels, have a contemporaneous explanation tied to experience, scope, or business need.

• Pressure-test pay decisions before rollout.
  Ask whether the explanation would make sense to someone outside the company, not just inside HR.

• Treat reorganizations as pay-equity risk events.
  New titles, blended roles, and harmonized paygrades are moments when disparities surface and should be reviewed proactively.

Bottom line

The employer’s salary-history approach worked for transferred employees. It did not resolve the case for promoted comparators, where timing and unexplained pay differences left key questions unanswered.

In Groundhog Day, the problem isn’t that the day repeats. It’s that nothing changes. At one point, Phil Connors captures the frustration perfectly: “What if there is no tomorrow? There wasn’t one today.”

That same problem shows up when employers investigate complaints about a supervisor, conclude the conduct is not actionable, and then respond the same way each time the issue resurfaces.

A familiar scenario

Several employees complain over time about the same supervisor.

The early complaints involve borderline behavior – inappropriate comments in meetings, jokes, interruptions, dismissive treatment. HR investigates, concludes the conduct is unprofessional but not severe or pervasive, and the company provides coaching.

The complaints continue. HR repeats the same investigation, reaches the same conclusion, and the employer imposes the same corrective step. The supervisor remains in place. The behavior does not stop.

Eventually, one employee experiences conduct frequent and serious enough to plausibly allege a hostile work environment. She reports it. The employer investigates again and takes action.

By then, the employer is defending more than its final response.

What these cases are about

These cases turn on the employer’s ability to show it exercised reasonable care to prevent and correct harassment by a known repeat offender.

When harassment is committed by a supervisor and no tangible employment action occurred, employers often rely on the Faragher–Ellerth affirmative defense. That defense depends on more than having a policy and running investigations. It depends on whether the employer’s response was reasonably designed to stop the behavior.

Repeated notice followed by an unchanged response makes that showing harder.

Why repetition changes the analysis

Each complaint increases what the employer knows about the risk. When the conduct continues despite repeated investigations and repeated counseling, earlier responses become part of the evidentiary record.

A jury may reasonably ask:

• How many warnings did the employer receive?

• What changed after each one?

• Why did the behavior continue?

At that point, the employer is no longer defending the adequacy of a single investigation. It is defending whether its overall response reflected reasonable care once it knew it had a repeat problem.

The real mistake: freezing the response

Investigations are necessary. But repeating the same investigation and the same corrective step after repeated complaints can look less like diligence and more like inertia.

Reasonable escalation might include stronger discipline, closer supervision, role changes, or removing the supervisor from situations where the conduct has recurred.

Inertia is fatal to an affirmative defense built on reasonable care.

Employer takeaways

• Patterns matter. Repeated complaints about the same supervisor change the analysis.

• Escalation is part of reasonable care. Corrective action that doesn’t work must be reassessed.

• Effectiveness matters more than form. The goal is to stop the behavior, not to document the same response.

• Assume today’s decision will be judged later. Because it will be.

Bottom line

In Groundhog Day, the cycle only breaks when the response changes.

Workplace investigations follow the same rule. The employer controls whether the day repeats – and whether it can still claim it exercised reasonable care.

Whistleblower cases do not begin with evidence and proof. They begin with allegations. If those allegations are plausible, employers get forced into discovery. Under CEPA, that bar is very low.

TL;DR: At the motion-to-dismiss stage, a claim under the New Jersey Conscientious Employee Protection Act (CEPA) does not require proof that any law was actually violated. It requires factual allegations supporting a reasonable belief that the employer’s conduct was unlawful. Internal reporting to HR or to a supervisor, an adverse employment action, and close timing are usually enough to make retaliation plausible and push the case into discovery.

📄 Read the court’s decision

The timeline that doomed the motion to dismiss

From a defense perspective, none of this is exotic. This is exactly how ordinary HR issues turn into CEPA cases.

According to the complaint, the employee alleged:

• She believed company leadership was using proprietary materials from a former employer in violation of trade secret and intellectual property laws.

• She spoke with HR on May 14, 2024, and filed a formal HR report on May 17, 2024.

• HR allegedly delayed submitting the report and later told her it had been filed “anonymously,” despite an understanding that it would be filed in her name.

• On June 26, 2024, she allegedly received a negative performance review and was told her role would be eliminated and that there was “no place” for her at the company.

• Later, she alleged her annual bonus was cut by fifty percent and she was given notice that her employment would end.

That is the factual sequence the court accepted as true for purposes of the motion.

This case was not decided on the merits. It was allowed to proceed. The ruling answered only a procedural question: whether the complaint contained enough factual allegations to make retaliation plausible under CEPA.

Why this case survived: CEPA’s pleading standard is employer-unfriendly

This was a motion to dismiss, not a motion for summary judgment. The court was not deciding who was right or whether any law was actually broken. It was deciding a narrower question: do the allegations, taken as true, make retaliation plausible under CEPA?

At this stage, the court does not weigh evidence, assess credibility, or choose between competing explanations. It assumes the employee’s version of events is true and asks only whether those facts, on their face, could support a whistleblower retaliation claim.

CEPA does not require proof of an actual legal violation at the pleading stage. It requires allegations supporting a reasonable belief that the employer’s conduct violated the law. That belief must be objectively plausible, even if it ultimately proves to be mistaken. An employee does not have to be correct about whether misconduct occurred. She has to plausibly allege facts showing that her belief was reasonable.

That is why the employer’s argument that no trade secret violation really occurred missed the point. Correctness is tested later. Plausibility is the only question now.

CEPA also does not require outside reporting. This case did not involve regulators, subpoenas, or government agencies. It involved HR. Once an employee raises suspected illegality internally, CEPA protection is triggered. For many employers, that is the moment whistleblower risk actually begins.

Then timing did the final piece of work.

A report in mid-May.
A negative review and job-elimination message in late June.

That proximity alone was enough to plausibly allege causation, even though the termination itself came months later. Courts routinely allow causation to be inferred from close timing at the motion-to-dismiss stage, particularly in CEPA cases, which are construed liberally in employees’ favor.

Employer takeaways

• If you see these four things together, there is CEPA litigation risk: alleged illegality, an HR or supervisor complaint, any negative employment action, and tight timing. That combination is usually enough to reach discovery.

• CEPA is built on reasonable belief, not proof of an actual violation, from pleading through trial.

• Internal complaints trigger whistleblower protection. You do not need regulators or outside agencies. Once an employee reports concerns to HR or to a supervisor, CEPA is in play.

• Lock in business decisions before complaints arrive. If a reorganization, role elimination, or performance action is already planned, your documentation and timing must exist before a whistleblower report is filed.

• An investigation clearing the complained-of conduct does not end the CEPA analysis where a nexus may exist between the report and a subsequent adverse action.

Bottom line

This case was not won. It was allowed to proceed.

And under CEPA, that is often the real fight.

Hiring can feel like a checklist: background check, drug test, start date. But when an applicant raises a disability-related issue, those boxes stop being routine, and the Americans with Disabilities Act (ADA) starts asking questions.

TL;DR: An applicant disclosed prescription medications that could affect a required drug test and asked for help verifying them. The employer treated verification as the applicant’s responsibility and rescinded the job offer. A jury found the employer and related entities liable for failure to accommodate under the ADA and awarded back pay, emotional distress damages, and punitive damages. The court refused to overturn the verdict, reduced compensatory and punitive damages to an unallocated $50,000 under the statutory cap, and ordered limited injunctive relief.

📄 Read the decision

When pre-employment paperwork becomes an ADA issue

An applicant interviewed for a position at a senior living facility and cleared early hiring steps. During the process, she disclosed that she had post-traumatic stress disorder (PTSD) and took prescription medications that could affect a required drug test. She tried more than once to provide documentation and, when she did not receive guidance through the testing process, asked the employer for help verifying the prescriptions.

The employer required drug testing as a condition of employment. But the trial evidence supported the view that the employer treated medication verification as something the applicant needed to handle on her own with the testing vendor. There was no consistent follow-up, no clear point person, and no meaningful back-and-forth aimed at resolving the issue.

The applicant was ultimately told she would not be hired.

The EEOC sued, alleging that the employer failed to provide a reasonable accommodation during the application process.

A jury agreed.

Why the employer lost, and why the court would not undo it

After a five-day trial, the jury found the employer and related entities liable for failing to accommodate the applicant and awarded $5,083 in back pay, $50,000 for emotional suffering, and $350,000 in punitive damages.

Post-trial, the employer asked the court to overturn the verdict or grant a new trial. The court declined.

The court did, however, grant a remittitur as a matter of law. Because the combined compensatory and punitive damages exceeded the statutory cap, the court reduced those damages to an unallocated total of $50,000.

Even with that reduction, the order reads like a cautionary tale about process and proof. One of the employer’s core arguments was that the applicant abandoned the interactive process by failing to return a phone call. But the evidence about that call, including whether a voicemail existed and what it contained, was not definitive. The court held that the jury could reasonably conclude the employer’s actions were inconsistent with a good-faith interactive process.

Two other parts of the decision stand out.

First, the court pointed to evidence supporting punitive damages, including testimony that the employer submitted false statements during the EEOC investigation and testimony that key personnel received no ADA training.

Second, even after trial, the employer could not show that the problem was unlikely to recur. The court granted injunctive relief in part, requiring annual ADA training for three years, adoption and maintenance of a detailed ADA policy addressing hiring procedures, and notice to the EEOC when those steps were completed.

The ADA does not wait until someone’s first day

The timing matters. The ADA can apply during hiring. When an applicant raises a disability-related issue connected to a hiring requirement, including drug testing, the interactive process can be triggered before employment ever begins.

Treating the issue as “between you and the lab” can look less like efficiency and more like abdication.

Employer takeaways

• Pre-hire accommodations are still accommodations. If an applicant raises a disability-related concern during hiring, the ADA may already be in play.
• Drug testing does not pause ADA obligations. When prescription medications are part of the issue, the safer move is engagement, not deflection.
• Delegating compliance is not compliance. An employer remains responsible for the interactive process even when drug testing is handled by a third party.
• Training is not optional in practice. A lack of ADA training is not neutral at trial, and juries tend to treat it as indifference.
• Even “wins” have costs. The court capped certain damages, but the employer still bought itself a jury verdict, an injunction, and the legal fees that come with a five-day trial and post-trial motions.

Bottom line

Most ADA failures are not about hostility toward accommodation. They are about silence, delay, and nobody taking responsibility. This case shows how expensive that can get, even before day one.

If retaliation claims could be proven just by pointing to an employer’s handbook, summary judgment would be extinct. This court made clear that policies don’t replace proof.

TL;DR: An employee argued that retaliation could be inferred because the employer’s harassment policy required managers to report complaints “up the ladder,” so the decisionmaker must have known. The court rejected that theory as speculation. Retaliation still requires evidence of actual decisionmaker knowledge – and even then, the claim fails without proof of pretext.

📄 Read the decision here

“Someone should have told her” is not evidence

The employee claimed she was fired in retaliation for complaining about sexual harassment. The issue wasn’t whether her complaint was protected activity. It was whether the person who fired her knew about it.

The decisionmaker said she didn’t. The employee never complained to her directly. That should have been the end of the retaliation claim.

Instead, the employee tried a workaround.

She pointed to the employer’s harassment policy. The policy required managers who received complaints to escalate them. From that, the employee argued a jury could infer the decisionmaker must have known – even though there was no evidence anyone actually told her.

The court wasn’t persuaded.

A policy doesn’t fill in missing facts

Retaliation still requires a link between the protected activity and the adverse action. That means actual knowledge by the decisionmaker.

That’s different from harassment claims, where an employer can be liable if it knew or should have known and failed to act. Retaliation, by contrast, turns on whether the person making the decision actually knew about the protected activity.

The court refused to assume the policy worked the way it was supposed to. It would not speculate that the complaint traveled “up the ladder” just because the policy said it should. As the court explained, it’s not enough that an employer could have known or even should have known. There has to be evidence the decisionmaker actually knew.

A policy sets expectations. It doesn’t create facts.

When complaints stop short of the person making the call

This argument usually shows up when an employee complains to someone other than the person who later makes the employment decision. In those situations, employees often try to rely on internal reporting rules to bridge the gap.

Courts, including this one, aren’t persuaded. Without evidence that the complaint actually reached the decisionmaker, a policy alone isn’t enough.

The real reason the claim failed

The opinion doesn’t stop with knowledge. It goes further.

The court emphasized that even if the decisionmaker had known about the complaint, the claim still failed because the employer had a legitimate reason for the termination and the employee couldn’t show it was a lie.

The decisionmaker reviewed the employee’s disciplinary history, believed termination was warranted, and acted on that belief. The court focused on honest belief, not perfect judgment.

Without evidence of pretext, the retaliation claim couldn’t survive.

Takeaways for employers

• Retaliation still turns on who knew what, and when

• Policies don’t impute knowledge by themselves

• “Should have known” may matter for harassment claims, but retaliation still requires actual decisionmaker knowledge

• Require managers to escalate harassment complaints promptly and consistently

• Before taking disciplinary action, have the decisionmaker confirm and document whether any harassment complaint reached them

Bottom line

Harassment policies matter. Courts just won’t let them do the plaintiff’s causation work. Without evidence of actual knowledge and without proof of pretext, retaliation claims don’t get to a jury.

Most employment cases fall apart because the evidence is thin or the comparators don’t line up.
This one fell apart because of what the employee herself admitted – under oath.

TL;DR: A Sixth Circuit panel affirmed summary judgment for an urgent care clinic after a front-desk employee was terminated following inappropriate comments to a police officer seeking treatment. The employee’s own deposition testimony defeated her hostile work environment claims, while her discrimination claims failed for lack of replacement or comparator evidence. Without proof tying the decision to race or gender, the case never got off the ground.

📄 Read the decision.

A front-desk job where professionalism is the job

The employee worked as a patient service specialist at the front desk of an urgent care clinic. During a shift, a uniformed police officer came in for treatment. While a coworker handled registration, the employee engaged the officer in what she later described as “small talk,” including asking whether he had ever killed anyone.

The officer complained to his supervisor, who arrived at the clinic shortly thereafter. According to the supervisor, the employee made additional inappropriate remarks. The employee disputed that account.

After the encounter, the employee texted the clinic manager, referring to the supervisor as a “grumpy old man” and asking to leave early because she was concerned about him running her expired vehicle tags.

The clinic suspended her that day pending investigation. The following morning, the police chief contacted management, expressed that the department was upset, and said it would likely sever its relationship with the clinic. Later that day, management and HR terminated the employee for her conduct.

The discrimination claims stalled at the starting line

The employee sued, alleging race and gender discrimination and a hostile work environment under federal and state law. The district court granted summary judgment for the employer, and the Sixth Circuit affirmed.

On the discrimination claims, the problem was fatal from the outset. The employee admitted she did not know who replaced her or whether she was replaced at all. And her proposed comparators were little more than speculation – unnamed employees, unknown conduct, and unknown outcomes.

As the court put it, “conclusory allegations, speculation, and unsubstantiated assertions are not evidence,” and they are not enough to survive summary judgment.

That ended the disparate treatment claims before the court ever reached pretext.

The admissions that quietly ended the harassment claims

The employee’s own testimony ended the harassment claims.

Asked whether she believed the employer harassed her because of her race, she answered:

“[N]o, I don’t believe that they harassed me because of my race. I believe they harassed me because of what the police officer said.”

She also disclaimed any gender-based motive, testifying that her termination was “not from [the employer], no,” and confirmed that she never complained internally about harassment.

That was enough. As the Sixth Circuit put it, because the employee herself did not believe the conduct was based on race or gender, “no reasonable jury could find that [the employer] subjected her to a hostile work environment.”

With those admissions in the record, the court had no reason to analyze severity, pervasiveness, or workplace context. The claims failed on the employee’s own words.

Why moving fast didn’t create liability

The employee argued that the clinic acted too quickly and out of reputational concern. The court did not dispute that the employer moved fast.

But Title VII does not prohibit employers from responding promptly to serious complaints or protecting business relationships. What matters is whether the decision is tied to a protected characteristic. Here, it wasn’t.

What employers should take away

• Roles that interact directly with the public deserve extra attention. Expectations are higher, and the margin for error is smaller.
• Be explicit about professionalism in public-facing roles. Employees should not be left guessing where casual conversation ends and workplace standards begin.
• Intent may explain behavior, but impact is what drives employment decisions. Focus on how the conduct was received, not how it was intended.
• Act promptly, but with structure. Move quickly when needed, but ground decisions in a clear, repeatable process.
• Apply standards consistently. Similar conduct should lead to similar outcomes, independent of personalities or context.

The bottom line

This case did not fail because the employer ran a flawless investigation. It failed because the record – including the employee’s own testimony – never tied the outcome to race or gender.

Sometimes, the most important evidence isn’t what the employer says or does.
It’s what the plaintiff admits.

The EEOC just pulled the plug on its most comprehensive harassment guidance. Some federal guardrails are gone, but the law is not – and neither are employers’ obligations.

TL;DR: The EEOC has rescinded its 2024 Enforcement Guidance on Harassment in the Workplace. The statutes prohibiting harassment did not change, but the agency withdrew its most detailed explanation of how it interpreted those laws in practice. Employers now need to rely more directly on statutory text, court decisions, state and local law, and the EEOC’s remaining harassment resources when shaping policies, training, and investigations.

📄 Read the EEOC’s press release announcing the rescission

The guidance that just vanished

In April 2024, the EEOC issued its Enforcement Guidance on Harassment in the Workplace, a consolidated document explaining how the agency evaluated harassment claims under statutes such as the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). It addressed hostile work environment standards, employer liability, investigative duties, and corrective action.

It also covered modern issues like remote harassment, online conduct, and social media behavior.

For many employers, it functioned as a convenient, centralized reference for how the EEOC said it viewed harassment law in practice.

That reference point is now gone from the EEOC’s website.

The archived guidance remains available here: Enforcement Guidance on Harassment in the Workplace (2024)

Why the EEOC pulled it

The explanation starts with leadership and priorities.

When President Trump appointed Andrea R. Lucas as Acting Chair of the EEOC in January 2025, the EEOC’s own press release announcing her appointment described her agenda as centered on evenhanded enforcement of employment civil rights laws, fidelity to statutory text, and alignment with presidential executive orders. It also emphasized protecting sex-based distinctions in the workplace and resisting policymaking through agency guidance.

That signaled a different philosophy about guidance. This EEOC would be far less willing to use guidance documents to expand or reshape civil rights law and far more focused on enforcing statutes as written.

One of the core problems, as Chair Andrea Lucas framed it, was that the guidance conflicted with the biological and binary definition of sex reflected in federal policy and executive orders, including the legal significance of that distinction for women’s rights to single-sex spaces in the workplace.

Another core objection was that the guidance expanded Title VII beyond its statutory text. In this EEOC’s view, the document did not simply interpret existing law. It attempted to redefine what constituted unlawful “sex” harassment through agency commentary rather than through legislation or binding judicial precedent.

At bottom, this was a dispute about how far Bostock v. Clayton County should be read to go. The prior EEOC treated Bostock as a springboard for broader policy positions in the harassment context. This EEOC rejected that approach and viewed Bostock as resolving a narrower question about discrimination in hiring and firing.

From that perspective, rescinding the guidance was almost inevitable. If Bostock was not meant to reshape harassment law, then a guidance document built on that assumption could not stand.

What did not change

The rescission did not repeal a single statute.

Title VII still prohibits harassment based on race, color, religion, sex, and national origin.
The ADA still prohibits disability-based harassment.
The ADEA still prohibits age-based harassment.

Employers still must prevent harassment, investigate complaints, and take prompt corrective action. Employees still have the same legal protections.

What changed is the loss of the EEOC’s most detailed interpretive guide for applying those laws to real-world workplace situations.

The EEOC still maintains general harassment resources here. Those materials, however, are far less prescriptive than the 2024 guidance.

Practical takeaways for employers

The guidance helped employers understand the EEOC’s enforcement lens. It never changed the legal standards or reduced liability.

Re-anchor policies in statute and case law.
If your anti-harassment policy mirrors language or examples drawn from the 2024 guidance, revisit it. Policies should track statutory standards and binding judicial decisions, not a document the EEOC no longer stands behind.

Rework training to focus on legal standards.
Training should teach what harassment is under the law, how complaints are reported, how investigations work, and why retaliation is prohibited.

Treat investigations as proof of compliance, not a substitute for it.
Documentation has always been central to harassment compliance. It remains the primary way employers show that they took complaints seriously and acted appropriately.

Give state and local law more attention.
Many jurisdictions impose harassment standards that go beyond federal law. Those rules may increasingly define what best practices look like.

Bottom line

Employers no longer have an EEOC harassment roadmap, but they still have a legal obligation to get it right.

Deciding too early that accommodation is impossible can shape everything that follows. This case shows why courts often let juries sort it out.

In a recent ADA decision from the Northern District of Illinois, an employer decided an injured employee could not return as a bus operator under her medical restrictions. After that decision, the employer relied on its absence-without-leave policy to terminate her. The court refused to end the case at summary judgment.

TL;DR: An employer concluded an injured employee could not return as a bus operator under her medical restrictions and later fired her under an absence policy. The court denied summary judgment, holding that a jury could decide whether temporary light-duty work was available and whether disability played a role in the termination.

📄 Read the decision

An injury between shifts followed by a hard stop on return-to-work options

The employee worked in a safety-sensitive job that required driving a commercial vehicle. In 2020, she was injured between two scheduled shifts while waiting to begin her second shift. She could no longer drive a bus, and the incident triggered her preexisting post-traumatic stress disorder.

She remained out of work until she was terminated in 2022.

During that time, the employer decided she could not return unless she could perform her original job. Requests for accommodation and leave were denied. Only after that did the employer rely on its absence policy to end the employment relationship.

She sued under the Americans with Disabilities Act.

Why the employer’s attendance-only explanation fell apart

The employer argued the case was simple. The employee had not worked for more than a year and was terminated under a neutral attendance policy. The court rejected that framing because it skipped questions the ADA requires courts to answer before getting to attendance.

The court focused on two unresolved issues.

First, whether the employee was qualified for other work at the time of termination, including temporary light-duty assignments.

Second, whether the termination decision was tied to her medical restrictions rather than her absence alone.

Those questions mattered because of how the employer framed the employee’s return-to-work options.

At a meeting shortly before termination, the employee testified that her supervisor told her:

“[u]nless you come back full-time driving a bus, we’re not going to let you back in.”

At that point, the employee had been medically cleared to work with restrictions. The real dispute was whether other work should have been considered.

The court did not say attendance was illegitimate or that the employer lacked a business reason to terminate. Attendance problems can justify termination, even when they stem from a medical condition. But a jury could find that the employee’s medical restrictions shaped the employer’s return-to-work decision first and that attendance was relied on only after accommodation was taken off the table.

Under the ADA, disability need only be a reason, not the only reason, for the termination. That distinction kept the disparate treatment claim alive.

Courts often view return-to-work positions framed as “full duty only” as evidence that accommodation was never meaningfully considered.

Why the employer could not rule out light-duty work

The failure-to-accommodate claim stood on a separate footing.

The employer argued there was no other work the employee could do. That argument depended on a temporary light-duty program and the employer’s position that the employee did not qualify.

The court was not persuaded.

A jury could find the employee was on duty when she was injured, that her condition was temporary, and that her medical updates could support a return to work within six months. The record showed improvement shortly before termination and left room for disagreement about the recovery timeline.

The employee also testified that other injured workers performed clerical or janitorial tasks while recovering. Given the employer’s size and its own program, the court said:

“It strains credulity to imagine that no light duty position was available”

Because that factual dispute remained, the failure-to-accommodate claim also had to go to trial.

What this means for employers making return-to-work decisions

1. Do not decide too early that accommodation is impossible. That decision frames everything that follows.

2. Avoid “100% healed” return-to-work positions. Requiring full clearance instead of assessing work with limitations is a common ADA mistake.

3. Keep the claims separate in your own analysis. A legitimate attendance reason does not erase a failure to accommodate.

4. Look beyond the original job. Temporary or alternative work may matter.

Bottom line

This was not a case about whether an attendance policy can ever justify termination. It was a case about what happened before the policy came into play.

When accommodation questions are still unresolved, courts are reluctant to take the case away from a jury.

And once a jury is involved, employers lose control of the outcome.

A single recruiting phone call. No application. No interview. And yet, enough evidence for a federal judge to let an ADA hiring case move forward.

TL;DR: A federal court in North Carolina refused to throw out an ADA hiring case brought by the EEOC after a recruiter allegedly shut down a deaf applicant’s job inquiry because he used a relay interpreter. Looking at the evidence in the EEOC’s favor, the court said the ADA covers how employers handle job inquiries, not just final hiring decisions – and that what a recruiter says on an initial call can matter a lot.

📄 Read the court’s decision

A recruiting call that ended almost immediately

In January 2023, an experienced truck driver with a commercial driver’s license and a hearing exemption called a trucking company to ask about job opportunities. Because he is deaf, he used a sign-language interpretation service to make the call.

When the interpreter identified herself and explained she was calling on behalf of “someone that uses sign language,” the recruiter responded, “we cannot accept that over here.” He then said the company “cannot bring in somebody who does not read [write] and speak English,” and hung up.

The driver called back. As soon as the recruiter heard the interpreter speak, he hung up again.

The driver did not apply for a job or pursue the process further.

Why “he never applied” didn’t end the case

The company’s main argument was simple: the driver never actually applied for a job. The court wasn’t persuaded.

The ADA does not just protect people who fill out applications. It also covers how employers handle job inquiries and early steps in the hiring process. If an employer shuts the door at the outset, the lack of a formal application is not necessarily the end of the story.

Here, the driver testified that the recruiter made it “crystal clear” the company was not interested in hiring deaf drivers. Based on that experience, he did not take any further steps or submit an application. At this stage of the case, that was enough to keep the claim alive.

The recruiter’s role mattered

The company also argued that the recruiter wasn’t a decisionmaker and therefore couldn’t create liability. The court disagreed.

This wasn’t a random employee answering the phone. The recruiter’s job was to talk with people interested in working for the company and to help them move through the application process. Because of that role, what he said – and how he handled the call – could be treated as speaking for the company.

In short, control over the process mattered, even without final hiring authority.

Why the court called this direct evidence

The court said the recruiter’s statements and actions during the calls could, on their own, show discrimination. No guesswork or connecting-the-dots was required.

If the EEOC’s version of events turns out to be true, rejecting someone within seconds of a job inquiry because of a disability would mean treating that person worse because of that disability. That is why the case was allowed to move forward.

What employers and HR should take from this

This decision offers some straightforward lessons:

• Train recruiters like managers. Courts may treat them that way.
• Have a plan for interpreter or relay calls. Confusion happens; hanging up should not.
• Don’t mix up disability and qualifications. Hearing ability and English proficiency are not the same thing.
• Build in an escalation option. If a recruiter is unsure how to proceed, pausing and asking for help beats ending the call.
• Remember where risk starts. Hiring problems can begin before anyone fills out an application.

The bigger takeaway

This case isn’t really about trucking or licensing. It’s about what happens at the very first point of contact – the moment many employers assume carries the least risk.

Sometimes, it carries the most.

Bottom line: Hiring risk doesn’t start with an offer letter. Sometimes it starts with who answers the phone – and what they say next.

When an employee’s health takes a turn, the instinct is to be flexible. The legal risk is assuming flexibility means you cannot enforce expectations.

TL;DR: The Eleventh Circuit affirmed summary judgment for a county employer that ended a probationary employee’s employment after documenting performance problems, even though the employee had serious medical conditions and was allowed to work from home on some days with flexible hours. The court held the employee did not present direct evidence of disability discrimination and could not show the employer’s performance-based explanation was pretext under either McDonnell Douglas or a “convincing mosaic” theory.

📄 Read the Eleventh Circuit’s opinion

Quick correction from yesterday’s NJFLA post:
I said NJFLA coverage would drop from 15 employees to 10 and then to 5. That is not what the final law says. The statute goes from 30 employees to 15 employees, and it stops there.

For the record, I know what bracketed language means in a bill. It’s basically a legislative strikethrough. I didn’t misunderstand it. I just… didn’t see it. Apparently, my eyes skimmed right past the part that said “this text did not make the final version.”

That one’s on me. Thanks to the sharp-eyed readers who caught it before I accidentally scared every 9-employee employer in New Jersey into a full-on compliance panic.

The probationary job, the health crisis, and the accommodation

A county animal services department hired an employee as an outreach specialist responsible for booking and hosting pet adoption events. The position required successful completion of a 12-month probationary period before the employee could attain civil service status.

Several months into probation, the employee developed serious health issues and was diagnosed with a brain tumor, thyroid masses, and an autoimmune disease. After she provided medical documentation, the employer allowed her to work from home on some days and to work flexible hours, provided she still worked eight hours each day.

The accommodation did not sit well with everyone. According to the employee, a department leader questioned how long the work-from-home arrangement would continue and whether it could end sooner.

The performance record that followed

After the employee began working remotely at times, her relationship with coworkers deteriorated. She said colleagues were less responsive and less willing to help with events. She also claimed she overheard a supervisor suggest she was “faking it” and that there was no way she had a brain tumor.

At the same time, supervisors documented a series of performance concerns during the probationary period. The record included recurring complaints about communication, event-planning problems, and a finance-division complaint about receipts from an event not being timely submitted. The employee did not dispute that the receipts were overdue, though she denied responsibility for submitting them. Management also cited inefficiency while working from home, including a specific day on which the employee allegedly produced little work output while reporting four hours of time.

Eleven months into the probationary period, the supervisor notified human resources that she intended to conclude the employee had failed probation. Human resources prepared a failure-of-probation letter, which a department leader signed. At a subsequent meeting, an HR leader explained to the employee that the decision was not about her health issues, but about performance and her inability to give “100%” right now.

The employer contended the employee resigned. The employee contended she was terminated. For purposes of the appeal, the court assumed she was terminated.

Why the county won

The employee sued under the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, and the Florida Civil Rights Act, alleging her employment ended because of her disability.

The Eleventh Circuit affirmed summary judgment for the employer.

First, the court held the employee did not present direct evidence of disability discrimination. The statements made during the probation-failure meeting were ambiguous and open to interpretation, not the kind of blunt remark that proves discriminatory intent without inference.

Second, the employee could not show pretext. The court focused on the employer’s stated reasons—complaints about lack of communication and the employee’s admitted failure to timely submit receipts—and concluded the employee had not shown those reasons were false. The court also reiterated a familiar principle: it does not decide whether an employer’s reasons were prudent or fair. The only question is whether discrimination was the real reason.

The employee also tried to survive summary judgment under a “convincing mosaic” theory. That effort failed as well. Taken as a whole, the evidence showed workplace frustration with remote work and a belief that performance suffered, not intentional disability discrimination by the decisionmaker.

Three employer takeaways

If remote work is the accommodation, keep expectations concrete.
Spell out deliverables, responsiveness requirements, and coverage expectations. Flexibility works best when expectations are clear.

Document performance issues while the accommodation is in place.
This case turned on the employee’s inability to show the employer’s reasons were false. Contemporaneous, specific documentation mattered.

Train supervisors to stay out of the medical lane.
Comments like “she’s faking it” are litigation kindling. Supervisors should focus on observable performance and expectations, not medical speculation.

Bottom line

Accommodation and accountability can coexist. A probationary period still means something, and courts will not second-guess an employer’s honestly held, performance-based decision when the record supports it.

Governor Murphy just expanded the New Jersey Family Leave Act. It reads cleanly in the statute. It reads a little differently once you try to apply it to real people and real leave requests.

These amendments are not cosmetic. They expand coverage, accelerate employee eligibility, and formally connect NJFLA to New Jersey’s paid-leave system. For employers, this is a structural change in how leave has to be managed.

TL;DR: Governor Murphy has signed legislation that significantly expands the New Jersey Family Leave Act (NJFLA). The law now applies to much smaller employers, employees qualify far more quickly, reinstatement obligations are clarified and strengthened, and NJFLA is expressly coordinated with Temporary Disability Insurance (TDI), Family Leave Insurance (FLI), and New Jersey’s statutory Earned Sick Leave. Paid leave and job protection are no longer separate conversations. They are one compliance system.

📄 Bill text
📰 Governor’s press release

NJFLA Is Moving Deep Into the Very Small Employer Space

NJFLA already applied to many small employers. The shift now is from small to very small.

Employer coverage threshold: The NJFLA coverage threshold is reduced from 30 employees to 15 employees, expanding job-protected leave obligations to many smaller employers that were previously outside the statute.

That is not a technical tweak. It brings NJFLA into workplaces that often do not have dedicated HR staff, formal leave policies, or experience managing reinstatement obligations. Those are exactly the environments where well-intentioned mistakes turn into statutory violations.

[Correction: An earlier version of this post referenced a phased reduction of the employer threshold below 15 employees. The law signed on January 17, 2026 reduces the threshold from 30 employees to 15 employees.]

Employees Qualify Almost Immediately

Before, NJFLA eligibility required:

• 12 months of employment
• 1,000 hours worked

Now, an employee qualifies after:

• 3 months of employment
• 250 hours worked

Paid Leave and Job Protection Are Now Tied More Closely Together

The amendments strengthen and clarify restoration rights for employees who take:

• Temporary Disability Insurance (TDI)
• Family Leave Insurance (FLI)

Employers must restore employees to their position or an equivalent position and may not retaliate by refusing reinstatement.

That matters because it tightens the connection between paid benefits and job-protected leave. Treating those as separate systems is no longer safe.

Earned Sick Leave Is Now Part of a Coordinated System

The amendments expressly coordinate New Jersey’s Earned Sick Leave law with TDI and FLI.

If an employee is eligible for:

• Statutory earned sick leave, and
• Either TDI or FLI

the employee:

• Chooses which statutory leave to use
• Chooses the order
• Cannot receive more than one type of paid leave at the same time

In plain English, the employee controls sequencing. The employer does not.

That makes lawful leave stacking much easier. For example:

• Earned sick leave → TDI → NJFLA
• TDI → FLI → NJFLA
• Earned sick leave → FLI → reinstatement rights

What once felt like separate benefit programs now operates as a single leave ecosystem.

What Employers Should Be Doing Now

1. Audit headcount.
   Many employers are about to become newly covered without realizing it.
2. Update NJFLA policies.
   Eligibility and coverage sections in most handbooks are now wrong.
3. Coordinate payroll and HR tracking.
   Statutory earned sick leave, TDI, FLI, FMLA, and NJFLA must be tracked together.
4. Train managers.
   Especially on reinstatement obligations and leave sequencing.
5. Prepare for longer protected absences.
   The statute now openly permits sequencing and stacking.

This is not a technical update. It is a structural shift.

Governor Murphy’s amendments, which take effect on July 17, 2026, move NJFLA into the very small-employer space, tie it tightly to paid-leave benefits, and make casual leave management far riskier. Employers who still treat leave as a collection of disconnected programs are about to find out how expensive that approach can be.

Wage-and-hour disputes often come down to one deceptively simple question: when does paid work actually begin? A recent Eleventh Circuit decision draws some clear – and employer-friendly – lines around travel time, tool time, and waiting time under the Fair Labor Standards Act.

TL;DR: The Eleventh Circuit held that temporary laborers were not entitled to pay for time spent waiting at a labor hall, collecting generic tools, or traveling from the labor hall to job sites – even when the employer offered optional transportation. None of that time was “integral and indispensable” to the employees’ principal job duties, and transportation deductions were lawful because the transportation primarily benefited employees, not the employer.

📄 Read the court’s decision here

A labor hall, optional benefits, and a pay dispute

The employer operated a staffing business that placed workers in short-term, day-to-day assignments. Workers known as “daily ticket workers” voluntarily gathered at a labor hall to indicate their availability for work. If selected, they received a ticket identifying the jobsite, start time, and any suggested or required equipment.

The company offered optional transportation from the labor hall to jobsites and access to basic equipment – items like hard hats, safety vests, gloves, goggles, brooms, rakes, shovels, masks, and work boots. Workers could also use their own transportation or bring their own tools.

Workers who used company vans or carpools were charged $3.00 per day ($1.50 each way), and carpool drivers were paid $1.50 per rider per leg. At the end of the day, workers typically returned to the labor hall, returned any borrowed equipment, and were paid.

Several hundred workers sued, claiming the employer violated the FLSA and Florida law by deducting transportation costs and failing to pay for travel time, tool collection, and waiting time. The district court entered summary judgment for the employer, and the Eleventh Circuit affirmed.

The governing rule: “integral and indispensable” still controls

Under the Portal-to-Portal Act, employers are not required to pay for preliminary or postliminary activities unless those activities are an “integral and indispensable” part of the employee’s principal job duties.

The court emphasized a key point: the test focuses on the productive work the employee was hired to perform – not whether the employer required, offered, or incidentally benefited from the activity.

Transportation deductions and travel time

The court rejected the argument that transportation deductions unlawfully reduced wages below the minimum wage. Transportation was optional, workers had multiple ways to get to jobsites, and customers did not require employer-provided transportation. Even though timely arrivals also benefited the employer, the transportation primarily benefited employees.

Travel from the labor hall to the jobsite was treated as ordinary commuting time. Providing transportation did not change that result, nor did the fact that workers often gathered at the labor hall first. Critically, workers were not required to wait for employer-provided transportation and could proceed directly to the jobsite if they wished. The court also found Department of Labor guidance persuasive, which treats travel from a central location to a customer’s establishment for temporary labor as noncompensable.

Tool collection and waiting time

The court likewise rejected claims for time spent collecting and returning tools. The equipment was nonspecialized, some jobs required no tools at all, workers could bring their own tools, and workers could still receive assignments even if they lacked recommended equipment. Activities that are helpful or convenient do not automatically become integral and indispensable.

Finally, the court held that time spent waiting at the labor hall or for transportation was noncompensable. Workers decided when and whether to seek assignments, understood they were paid only for time spent working at jobsites, and used waiting time for personal activities like getting coffee, sleeping, smoking, or leaving the premises. That kind of waiting time was too far removed from productive work to require pay.

Bottom line for employers

• The workday begins with productive work, not convenience. Activities that make work easier are not automatically compensable.
• Employer involvement alone does not trigger pay obligations. Providing tools or transportation is not the same as requiring paid time.
• Central meeting points do not automatically start the workday. Voluntary reporting is different from required reporting.
• Generic tools are not the same as specialized, job-critical equipment. That distinction drives whether tool time is compensable.
• Waiting to be engaged remains different from being engaged to wait. When employees are free to use the time for themselves, pay is not required.

Not every minute connected to work is paid work – and this case is a useful reminder of where the FLSA draws the line.

No-hire agreements have quietly lived in vendor and service contracts for years.
The FTC has now made clear that they are an active antitrust enforcement target.

TL;DR: The Federal Trade Commission entered a consent order prohibiting a company from using no-hire agreements in customer contracts. The FTC treated those provisions as unlawful restraints on competition for labor and required immediate cessation, affirmative notice to employees and customers, and long-term compliance obligations. Employers should review vendor and service agreements for no-hire language before the FTC does it for them.

📄 Read the FTC press release

What the FTC Challenged

According to the FTC’s complaint, the company routinely included no-hire provisions in customer service agreements that:

• prohibited customers from hiring the company’s employees
• prevented replacement vendors from hiring those employees
• imposed financial penalties if those restrictions were violated
• applied during the contract and for a period after it ended

The FTC alleged that these agreements harmed competition in multiple ways, including restricting worker mobility, suppressing wage negotiation, discouraging customers from switching vendors, and deterring competitors from bidding or expanding.

Critically, the FTC framed the conduct as a restraint on competition for labor, not as an employment-policy dispute.

The FTC also emphasized in its announcement that enforcement against labor-market restraints like no-hire agreements remains an active priority, not a one-off action.

The Remedy Is the Signal

The consent order does not merely prohibit future use of no-hire agreements.

It requires the company to:

• immediately stop enforcing all existing no-hire agreements
• treat current no-hire provisions as null and void
• notify customers from the past three years that the restrictions are unenforceable
• notify employees that they may seek jobs with building owners or replacement vendors
• post workplace notices confirming that no-hire agreements do not apply
• comply with training, monitoring, and reporting requirements for up to ten years

That scope matters. The FTC is not just policing contract language. It is unwinding past conduct.

What Employers Should Take Away From This

This enforcement action carries several practical lessons for employers.

First, this is not just an HR issue. The agreements at issue appeared in customer and vendor contracts, meaning procurement, operations, and facilities teams can create antitrust risk without realizing it.

Second, “we don’t enforce it” is not a defense. The FTC’s theory makes clear that dormant no-hire language can still create exposure, especially when invoked during a vendor transition.

Third, no-hire clauses are being treated as labor-market restraints, not restrictive covenants. The focus is competition for workers, not whether an employee signed anything.

Fourth, unwinding prior agreements can be more disruptive than stopping future ones. Notice requirements to customers and employees can create operational and relationship challenges.

Finally, industry labels do not matter. Although this case involved building services, the enforcement theory applies broadly wherever companies agree to limit hiring across organizational lines.

Not a Noncompete Case – and That Matters

This enforcement action did not involve employee noncompete agreements. It focused on agreements between businesses that limited competition for workers.

Employers do not need employee signatures or HR-authored restrictive covenants to create antitrust exposure. Vendor and service agreements negotiated outside HR can raise the same risks.

Bottom Line

No-hire provisions are no longer a background concern or a theoretical enforcement risk.

The FTC has made clear that it views these agreements as unlawful restraints on labor markets and is willing to impose public, long-term remedies to stop them.

If your company’s vendor or service agreements restrict who can hire whom, this is the moment to take a closer look.

Constructive discharge is one of the most misunderstood concepts in employment law. Employees often assume that feeling sidelined, embarrassed, or treated unfairly is enough to turn a resignation into a legal claim. Courts, however, continue to apply a far stricter standard – one that looks past discomfort and focuses on whether working conditions were truly intolerable.

A recent federal court decision out of Arkansas reinforces that point.

TL;DR: A federal court in Arkansas dismissed the EEOC’s constructive-discharge claim on behalf of a male employee who was excluded from certain job duties by a small number of physicians. The court held that limited restrictions, subjective feelings of humiliation, and contextual considerations did not amount to objectively intolerable working conditions – reinforcing that constructive discharge requires far more than discomfort or frustration.

📄 Read the decision

The setup: limited exclusion, not total sidelining

The employee worked in a labor-and-delivery unit and assisted medical staff before, during, and after childbirth procedures. His role involved hands-on support, interaction with patients, and coordination with physicians during deliveries.

Some physicians permitted him to participate fully in their patients’ deliveries. Others declined to allow his involvement during certain procedures. As a result, his participation varied depending on the physician and the situation.

The EEOC argued that this uneven treatment created working conditions so intolerable that the employee had no choice but to resign.

The court wasn’t persuaded.

Why this didn’t rise to constructive discharge

Constructive discharge is judged by an objective standard, not by how an employee subjectively experienced the workplace. Courts ask whether a reasonable employee, facing the same circumstances, would have felt compelled to resign.

Here, the answer was no. The employee was not removed from the job, stripped of core responsibilities, threatened, disciplined, or harassed. Instead, he was excluded from participating in a limited number of tasks, in limited situations, by a small subset of decision-makers. Other supervisors continued to allow him to perform the same duties, including assisting with deliveries.

Context mattered to that analysis. The duties at issue involved sensitive, third-party considerations, including patient privacy and professional discretion. That context did not excuse discrimination, but it did shape whether the working conditions were objectively intolerable. The court concluded they were not.

The takeaway is broader than this case. Partial limitations, uneven assignments, or workplace frustration – even when legitimately upsetting – do not automatically convert a resignation into a constructive discharge. The bar remains high.

Practical takeaways for employers and HR

• High bar: Constructive discharge requires more than frustration or discomfort.
• Objective test: Courts ask what a reasonable employee would do.
• Context matters: Job structure and operational realities count.
• Partial limits: Uneven or situational exclusions are rarely enough.
• What’s missing matters: No harassment, no discipline, no forced exit.

Bottom line

This decision is a reminder that employers can make context-driven, operationally necessary decisions without automatically inviting constructive-discharge liability. Not every difficult workplace dynamic becomes a legal violation, and courts remain willing to draw that line.

Employment law does not guarantee comfort. It guarantees legality. The standard is intolerable conditions, not uncomfortable ones.

HR professionals do not have a crystal ball. When an employee files an EEOC charge, no employer can predict how that dispute might later be reframed in a lawsuit or expanded with new legal theories.

A recent Fourth Circuit decision recognizes that reality, while still reinforcing something practical for employers and HR teams alike: the EEOC charge plays a meaningful role in defining the case that follows.

TL;DR: The Fourth Circuit dismissed an employee’s Title VII claims, without prejudice, because the lawsuit went well beyond what was actually alleged in the EEOC charge. Retaliation and job-related claims were out because they were never raised with the EEOC. The case does not expect employers to predict future lawsuits, but it does reinforce why HR should respond precisely to the charge while still investigating thoroughly.

📄 Read the Fourth Circuit’s decision here.

What This Case Is – and Is Not – About

This decision is easy to misread, so it is worth being clear about what it does not say.

It does not suggest that employers should take EEOC charges lightly. It does not encourage narrow investigations. And it certainly does not give HR a green light to ignore issues uncovered during a workplace review.

HR should still investigate promptly, take complaints seriously, address misconduct, and guard carefully against retaliation, regardless of how narrowly a charge is written.

What the court addressed was something more limited and more realistic.

The Lawsuit Went Well Beyond What the EEOC Charge Alleged

The employee’s EEOC charge described her as a Ph.D. student and focused on alleged harassment by a professor tied to her academic program and graduation. The charge did not allege retaliation. It did not describe adverse employment actions tied to a separate job. And it did not suggest that she had been pushed out of employment.

When the case later reached court, the lawsuit told a much broader story. It added claims that the employer retaliated against her, treated her differently in connection with work as a research assistant, and effectively forced her out, which she characterized as constructive discharge. None of those theories appeared in the EEOC charge.

The Fourth Circuit drew a clear line. Title VII requires employees to raise their claims with the EEOC first, and courts will not fill in gaps or assume allegations that were never presented. While employees get some flexibility in how EEOC charges are drafted, that flexibility does not extend to bringing entirely new claims, new job-related allegations, or new legal theories for the first time in court.

Because the lawsuit expanded well beyond what the EEOC was asked to investigate, the court dismissed those claims, without prejudice, for failure to exhaust administrative remedies. The decision did not turn on whether the employer handled the situation well or poorly. It turned on what the employee chose to put, and not put, in the EEOC charge.

Just as important for HR teams, the court did not suggest that the employer should have anticipated these expanded theories or addressed them in advance. The boundaries of the case were set by the charge itself.

Why This Still Matters to HR – Not Just Lawyers

At first glance, this may sound like a technical ruling that mostly helps lawyers. But there are real, practical implications for HR when the takeaway is framed correctly.

Taking a charge seriously does not mean expanding it. HR can investigate broadly, fix problems, and address workplace concerns without rewriting the employee’s claims for them. Courts draw a line between a thorough internal response and legally expanding the scope of the charge.

Precision protects good HR processes. When HR responds to what is actually alleged and documents that response clearly, the employer preserves defenses later without cutting corners internally. This is not about doing less. It is about being careful.

Retaliation prevention still applies, but retaliation claims are not automatic. HR should always assume retaliation risk exists and manage it accordingly. Legally, however, retaliation claims still need to be raised and supported in the EEOC charge. Courts will not assume retaliation where the charge is silent.

The Bottom Line

This decision does not reward employers for clairvoyance. It rewards employers who take EEOC charges seriously, investigate responsibly, and respond carefully, without expanding the case beyond what the employee actually raised.

For HR teams, that is not gamesmanship. It is good process, and courts continue to recognize it.

Employers often worry that a good-faith effort to keep an injured employee working will later be used against them as proof they “could have accommodated” the employee indefinitely. A recent Sixth Circuit decision draws a clear line between temporary flexibility and permanent obligation.

TL;DR: The Sixth Circuit affirmed summary judgment on a failure-to-accommodate claim where a corrections officer returned from an on-duty injury with restrictions including “sitting job only, office type work only,” worked for several months in a transitional assignment, and then sought to continue that work indefinitely. Because the employee remained classified, paid, and benefitted as a corrections officer, the court evaluated essential functions based on that permanent role – not the temporary assignment. The court also rejected the argument that a transitional assignment could be treated as a vacant position suitable for reassignment.

📄 Read the Sixth Circuit opinion

A familiar return-to-work scenario

After a workplace injury, a long-tenured corrections officer returned to work with significant medical restrictions. His doctor limited him to “sitting job only, office type work only,” with no lifting, bending, or physical activity typical of a corrections officer.

To accommodate those restrictions, the employer placed him in a transitional employment assignment in a training department. The arrangement lasted about six months, with a short extension beyond the employer’s usual timeframe for transitional work.

When it became clear the condition would not improve in the short term, the employee submitted a formal accommodation request. His doctor described the restrictions as “permanent – until” hip replacement surgery. The employee asked to remain in light-duty work. The employer denied the request, citing exhausted entitlements and a lack of qualifying vacancies. The employee ultimately selected a leave option that ended employment but preserved certain length-of-service benefits.

The legal issue that mattered

To succeed on a failure-to-accommodate claim, the employee had to show he was “otherwise qualified,” meaning he could perform the essential functions of the job with or without a reasonable accommodation.

The dispute centered on a deceptively simple question:
What was the relevant job for that analysis?

The employee argued it was the transitional assignment he had been performing. The employer argued it was the permanent corrections officer position he remained classified, paid, and benefitted under.

The Sixth Circuit sided with the employer.

Why the employer won

Because the employee remained formally classified as a corrections officer throughout the transitional assignment, the court evaluated essential functions based on that role – not the temporary work he was doing.

The employee conceded he could not perform the essential functions of a corrections officer. That left only one path forward: showing that his requested accommodation was reasonable.

It was not.

The court rejected the argument that continuing transitional work amounted to a reassignment. The record showed transitional assignments were not vacancies, not funded positions, and not permanent roles. They were temporary, customized sets of tasks designed to keep employees working while recovery was expected. The employer also presented testimony that it does not have a specific light-duty position.

Temporary workarounds can be reasonable accommodations when they help an employee remain employed while recovering and returning to the essential functions of the job. But once it becomes clear that the employee cannot perform those essential functions, the question is whether the employer must make the workaround permanent – and the answer is generally no.

The court also rejected an interactive-process argument. A breakdown in the interactive process is actionable only if it prevents identifying an appropriate accommodation for a qualified individual. Here, the employee could not identify a reasonable accommodation that would allow him to perform the essential functions of the job.

What employers should take from this

• Temporary or transitional assignments do not redefine a job’s essential functions.
• Accommodation obligations are tied to the permanent role, not to a temporary workaround.
• Reassignment requires evidence of a specific vacant position the employee is qualified to perform.
• If you want light duty to remain temporary, your policies and documentation should say so clearly.

Bottom line

Accommodation law allows flexibility, not job reinvention. Helping an employee recover does not require an employer to turn a temporary solution into a permanent job.

Employees do not need perfect words or legal buzz phrases to trigger ADA protections. But they do need to communicate clearly enough to let an employer know they are asking for a change at work because of a medical condition.

A recent federal court decision out of Ohio shows what happens when that step never happens.

TL;DR: Even assuming an employer knew an employee had depression, the Americans with Disabilities Act does not require the employer to infer accommodation requests or retroactively excuse performance problems. Reasonable accommodation is forward-looking, not retroactive, and vague references to fatigue or mental health struggles do not trigger ADA obligations.

📄 You can read the court’s decision here.

Depression disclosures collided with performance failures

The employee, a regional manager, had a long history of depression. Years earlier, during a work trip, he told his supervisor that he had been diagnosed with depression, was on medication, and was struggling emotionally. His supervisor responded with empathy, excusing him from part of a meeting and later approving time off, missed calls, and flexibility when personal issues arose.

Over time, however, performance problems mounted.

Within a relatively short period, the employee failed to submit required reports, missed mandatory meetings, overslept and skipped parts of a company convention, and delayed responding to his supervisor.

After progressive discipline, including a final written warning, he missed yet another required team meeting. The company terminated his employment.

Only afterward did the employee argue that his depression and fatigue should have been accommodated under the ADA.

The ADA draws a line between awareness and obligation

Viewing the evidence in the employee’s favor, the court assumed that his depression could qualify as a disability and a jury could find the employer knew about the condition.

But that alone was not enough.

The ADA distinguishes between knowing an employee has a medical condition and knowing the employee is asking the employer to change how the job is performed because of that condition. Employers are not required to infer the second from the first.

Vague struggles do not trigger accommodation duties

Throughout the events leading up to termination, the employee made generalized statements about being tired, overwhelmed, or struggling. What he never did was clearly ask for a workplace adjustment.

He did not request modified duties, a changed schedule going forward, temporary relief from essential functions, or medical leave as an accommodation. He also did not provide medical documentation or restrictions explaining why accommodation was needed at the time performance problems occurred.

The ADA does not require employers to diagnose employees, speculate about limitations, or connect dots that are never clearly drawn.

Retroactive fixes are not reasonable accommodations

When the employee did raise time off, it came after missed meetings and disciplinary action and took the form of asking whether past absences could be charged to accrued PTO.

That request failed as a matter of law.

Reasonable accommodation under the ADA is prospective. Employers are not required to excuse past misconduct or undo discipline based on explanations offered after the fact.

No request means no interactive process

Because the employee never requested an accommodation, the employer had no duty to initiate the interactive process.

The court rejected the idea that employers must open the interactive process whenever an employee mentions stress, fatigue, or personal difficulties. The process is triggered by a request, not by hindsight.

A brief note on the FMLA

The employee also brought an FMLA claim, which failed for a simple reason: he never requested FMLA leave or followed the employer’s leave procedures. After-the-fact explanations and retroactive PTO requests were not enough to trigger FMLA obligations.

What employers should take from this decision

• Awareness is not enough. Knowing an employee has a medical condition does not automatically trigger accommodation duties.
• Requests matter. The ADA’s obligations are triggered by a clear request for help, not by vague signals or hindsight explanations.
• Accommodation is forward-looking. Employers are not required to excuse past performance failures or undo discipline.
• Documentation still counts. Progressive discipline and consistent enforcement remain powerful defenses.
• Empathy does not equal liability. Supporting employees informally does not waive legal requirements or shift burdens.

Bottom line

The ADA protects employees, not ambiguity.

This decision reinforces a principle employers and HR professionals should not lose sight of: accommodation starts with a request. Empathy is good management. Clear requests are what trigger legal obligations.

Courts see plenty of promotion disputes that boil down to one familiar complaint: I should have gotten the job.
The Fourth Circuit just explained why that argument usually is not enough.

TL;DR: In a published decision, the Fourth Circuit affirmed summary judgment for an employer facing a Title VII failure-to-promote claim. Even assuming the employee could establish a prima facie case, she could not show pretext where the employer selected another candidate based on job-related criteria, interview scoring, and management experience. Courts do not act as “super-personnel departments” second-guessing promotion decisions.

📄 Read the decision here

Courts Don’t Re-Run Promotion Decisions

The employee applied for a senior leadership role at a community college. A search committee interviewed candidates using standardized questions, scored their responses, and recommended one candidate. A vice president made the final decision and accepted that recommendation.

The employee sued, alleging race- and gender-based discrimination under Title VII.

The Fourth Circuit ruled for the employer and made one thing clear. Even giving the employee the benefit of the doubt, the case still failed.

Why? Because the court refused to second-guess the employer’s promotion decision. Judges do not decide who should have gotten the job.

“More Qualified” Is Not Enough

The employer’s explanation was straightforward. It selected the candidate it believed was more qualified for the role based on criteria it identified in advance, including experience managing large programs and budgets, familiarity with workforce-development systems, knowledge of WIOA funding, and grant-writing experience.

The employee countered with coworker opinions, testimony questioning the selectee’s leadership style, and her own account of her performance and program growth.

That did not create a jury issue.

The court emphasized that it is the perception of the decisionmaker that matters, not coworkers’ views or an employee’s self-assessment. Disagreement over qualifications, even sincere disagreement, does not establish discrimination. Absent evidence that the employee’s qualifications were demonstrably superior, the court would not intervene.

That is the core of the “super-personnel department” principle. Title VII does not authorize courts to re-grade interviews or substitute their judgment for an employer’s.

Preselection Still Isn’t Discrimination

The employee also argued the process was engineered to promote specific candidates.

The Fourth Circuit rejected that theory as well. Even if preselection occurred, the court explained, it disadvantages all applicants, black and white alike. Without evidence tying preselection to race or gender, it does not show discriminatory intent.

A flawed process is not the same thing as an unlawful one.

Stray Remarks Need a Real Nexus

The employee pointed to various comments by a supervisor as evidence of discriminatory animus. The problem was connection.

The supervisor was not the final decisionmaker, and the remarks were not tied to the promotion decision itself. The court reiterated that stray or isolated comments, especially those untethered to the challenged action, carry little weight in a failure-to-promote case. The lack of temporal proximity only weakened the inference further.

Later Discipline Didn’t Change the Analysis

The employee also relied on a later corrective action letter related to timecard approvals. That evidence did not move the needle.

The court noted that the discipline was divorced from the promotion decision and that the record reflected adherence to internal policy and HR guidance, not deviation or selective enforcement. Without evidence of similarly situated comparators or policy departures, the discipline did not suggest discriminatory animus.

What Employers Should Take Away

• 📋 Define and document promotion criteria. Courts measure qualifications against the employer’s standards, not the employee’s.
• 🎯 Use structured interviews thoughtfully. Scoring alone is not dispositive, but it supports a legitimate explanation when paired with job-related reasoning.
• 🧠 Train hiring managers on how to make and explain promotion decisions well. Clear criteria, thoughtful evaluation, and disciplined explanations lead to better hires and fewer second guesses later. Good hiring habits pay off long before anyone is thinking about a lawsuit.
• 🧭 Keep decision-making lines clear. Courts care who actually made the call and whether alleged bias is connected to that decision.

The Bottom Line

This decision is a textbook reminder that Title VII is not a vehicle for courts to referee promotion decisions.

When employers can point to job-related criteria, a structured process, and a coherent explanation for why one candidate was chosen over another, courts will not step in to play super-HR.

On January 5, 2026, the U.S. Department of Labor’s Wage and Hour Division issued six opinion letters addressing a range of FMLA and FLSA issues. This post – part three of a three-part series – covers the final two letters, both under the FLSA, and both aimed at assumptions employers sometimes make about flexibility.

One letter addresses whether mandatory pre-shift “roll-call” time can be excluded from overtime calculations based on a collective bargaining agreement. The other addresses how to apply the commissioned-employee overtime exemption when state minimum wage exceeds the federal minimum wage – and what actually counts as commissions.

TL;DR: Time an employer requires and controls generally counts as hours worked for overtime purposes, regardless of what a collective bargaining agreement says. And for commissioned employees, the exemption still turns on federal thresholds and federal definitions.

📄 Read the opinion letters via the Department of Labor’s press release.

Mandatory Roll-Call Time Still Counts

The first letter addresses a collectively bargained requirement that employees attend a 15-minute “roll call” before each scheduled shift. Under the collective bargaining agreement, that roll-call time was excluded from overtime calculations.

That provision did not control the analysis.

WHD explained that when employees are required to report at a specific time, attend roll call, and remain under the employer’s control, that time is compensable hours worked under the FLSA. A collective bargaining agreement cannot waive statutory overtime requirements.

The takeaway is simple and firm:

You can bargain over pay rates. You cannot contract away hours worked.

Contract language may govern how time is paid. It does not redefine whether required, controlled time counts as work for overtime purposes.

Overtime Rules for Commissioned Employees – Under Federal Law

The second letter addresses the commissioned-employee overtime exemption under the FLSA.

Two questions were presented. First, in states where the minimum wage exceeds the federal minimum wage, which rate applies when determining whether the employee earns at least one-and-one-half times the minimum wage for purposes of the federal exemption? Second, do tips count as compensation for purposes of determining whether more than half of the employee’s compensation comes from commissions?

WHD answered both questions under federal law.

For purposes of the federal exemption, the federal minimum wage controls – even in states with higher minimum wages. And tips do not count as commissions, nor do they count as compensation toward satisfying the exemption’s commission requirement.

That conclusion is limited, but important.

State law may still impose higher minimum wages, different overtime rules, or additional limits on exemptions. Employers must comply with those requirements regardless of whether the federal exemption’s thresholds are satisfied. Meeting the FLSA’s math does not guarantee compliance under state law.

What the letter makes clear is narrower: when applying the federal commissioned-employee exemption, the calculations are governed by federal standards, and compensation that is not commission-based cannot be used to make the exemption work.

What Employers Should Take From This

• Time required and controlled by the employer generally counts as hours worked under the FLSA, regardless of contract language.
• Collective bargaining agreements cannot waive federal overtime obligations.
• For the federal commissioned-employee exemption, the exemption turns on federal thresholds and federal definitions.
• Only true commissions count toward satisfying the FLSA’s commission requirement; tips do not.
• Satisfying the federal exemption does not eliminate the need to comply with state wage-and-hour laws, which may impose higher or different requirements.

Bottom Line

Nothing here rewrites the FLSA. The letters simply reinforce a consistent theme across this series: employer flexibility ends where statutory requirements begin. Whether the issue is roll-call time or overtime rules for commissioned employees, assumptions still need to survive the statute.

On January 5, 2026, the U.S. Department of Labor’s Wage and Hour Division issued six opinion letters addressing a range of FMLA and FLSA issues. This post – part two of a three-part series – focuses on two FLSA letters that address problems employers often assume they have already resolved.

One letter deals with exempt classifications that appear sound based on job duties but unravel because of how the employee is paid. The other addresses bonus programs that feel discretionary until overtime calculations say otherwise.

TL;DR: An employee can satisfy the learned professional duties test and still be properly classified as non-exempt if the pay structure fails the salary-basis rules. And bonuses tied to known criteria almost always belong in the regular rate for overtime purposes.

📄 Read the opinion letters via the Department of Labor press release.

You Can Meet the Duties Test and Still Lose the Exemption

This letter addresses a licensed clinical social worker who believed she continued to qualify as an exempt learned professional even after her employer restructured her role.

WHD agreed that the employee’s clinical duties still required advanced, specialized knowledge. The elimination of supervisory responsibilities did not change that analysis – because supervision is not what makes a role a learned professional.

That conclusion, however, did not resolve the exemption question.

The employee’s pay structure had changed from salary to hourly. That shift alone was likely enough to defeat the exemption, even though her duties remained the same. The learned professional exemption turns on both what an employee does and how the employee is paid.

The letter then underscores a point employers often miss – and sometimes resist. Even when an employee satisfies every element of an FLSA exemption, the employer is not required to apply it. The Act prohibits misclassifying non-exempt employees as exempt. It does not require employers to classify employees as exempt simply because they could.

In other words, exemptions are permissive, not mandatory. Employers may classify employees as non-exempt and pay overtime as a matter of business judgment, risk tolerance, or administrative simplicity. Choosing the conservative path is not a violation. It is expressly allowed by the statute.

If the Bonus Is Earned, It’s Probably in the Regular Rate

The second letter addresses whether certain incentive bonuses may be excluded from the regular rate of pay.

The bonuses at issue were tied to specific, predetermined criteria – including attendance, safety, compliance, and performance benchmarks. Employees knew in advance what they needed to do to earn them.

That framing mattered.

WHD explained that once a bonus is announced in advance and earned by meeting known standards, it is not discretionary under the FLSA. Labeling a bonus “discretionary” does not make it so. And when a bonus is not discretionary, it generally must be included in the regular rate of pay.

That inclusion directly affects overtime calculations. If the bonus is excluded improperly, the overtime premium is wrong.

This isn’t a technical trap. It’s a common disconnect employers see when incentive programs are created without accounting for overtime math.

What Employers Should Take From This

• Exempt status depends on both duties and pay structure – changing one can undo the other.
• Employers may classify employees as non-exempt even when an exemption could apply.
• Bonuses tied to known, objective criteria are rarely discretionary for FLSA purposes.
• Incentive programs should be evaluated with overtime calculations in mind, not in isolation.

Bottom Line

Nothing here rewrites the FLSA. The letters simply illustrate how familiar missteps keep creating avoidable exposure.

Two different HR questions triggered two formal FMLA opinion letters this week – and both answers will feel uncomfortably familiar to the employers they affect.

On January 5, 2026, the U.S. Department of Labor’s Wage and Hour Division issued six new opinion letters in total, addressing a mix of FMLA and FLSA issues. One addresses a routine leave-administration issue faced by virtually all employers; the other zeroes in on a recurring leave-accounting problem unique to school employers. This post covers the two FMLA letters and kicks off a three-part series unpacking what employers should take from the full batch. Neither answer here is surprising. Both are easy to get wrong.

TL;DR: Employees can use FMLA leave for travel time to medical appointments, even if the certification is silent on travel. And partial‑week school closures do not magically increase or decrease FMLA entitlements.

📄 Read the opinion letters via the Department of Labor press release

FMLA Covers the Appointment – and the Drive There

This letter answers a question employers keep asking: if an employee has approved intermittent FMLA leave for medical appointments, does the Act also protect travel time to and from those appointments?

Yes. It does.

The Wage and Hour Division explained that FMLA leave is not limited to the minutes an employee spends in an exam room. When an employee needs treatment for a serious health condition, obtaining that treatment necessarily includes getting to and from the health care provider. As a result, employees may use FMLA leave for the appointment itself and for reasonable travel time connected to that appointment.

WHD also addressed a common administrative sticking point: medical certifications often confirm the need for periodic appointments but say nothing about travel. According to the letter, that omission does not make the certification incomplete or insufficient. Employers may not deny or limit FMLA leave simply because the health care provider did not estimate commute time.

At the same time, the letter draws clear operational boundaries. FMLA leave for travel time must be tied to the medical visit. It does not cover unrelated errands, extended detours, or additional time that is not reasonably connected to obtaining care. In short, travel counts – but only travel that actually serves the medical purpose.

When Schools Close Mid‑Week, FMLA Math Doesn’t Budge

The second letter tackles a deceptively common problem for school employers: how to calculate FMLA leave when a school closes for less than a full workweek due to weather or other disruptions.

WHD grounded its analysis in a basic principle – FMLA leave is measured in workweeks, and employees may not be charged for leave they did not actually take. From there, the outcome turns on how the employee is using FMLA leave.

If an employee is approved for intermittent or reduced‑schedule FMLA leave, only the time the employee would otherwise have been required to work counts against the entitlement. When the school closes for a day or two and the employee is not expected to report to work, those closure days do not reduce available FMLA leave.

By contrast, when an employee is on FMLA leave for the entire workweek, the full week counts as FMLA leave even if the school closes mid‑week. In that scenario, the closure does not pause the leave, credit time back, or change the weekly calculation.

The letter also makes clear what does not matter: whether the closure was planned or unplanned, whether the school later schedules make‑up days, or why the closure occurred. None of those variables affect how much FMLA leave is used. What matters is the structure of the approved leave and whether the employee was scheduled to work.

What Employers Should Take From This

• FMLA leave can include reasonable travel time to medical appointments.
• Medical certifications do not need to micromanage commute estimates.
• Partial‑week closures do not expand or shrink FMLA entitlements.
• For intermittent or reduced‑schedule leave, charge only the time the employee would have worked and actually missed – and nothing more.

Bottom Line

FMLA problems usually come from trying to simplify the math. These letters reinforce that the statute already did the math for you – and it expects employers to follow it exactly.

At a moment when federal agencies are actively dismantling disparate impact enforcement as a policy matter, New Jersey just went in the opposite direction – loudly, deliberately, and in writing.

Last month, the New Jersey Division on Civil Rights finalized new rules that spell out how disparate impact claims work under the New Jersey Law Against Discrimination in the employment context. These rules do not create new liability. What they do is remove any remaining ambiguity about how neutral workplace policies will be judged under state law.

TL;DR: In New Jersey, employment policies that disproportionately harm protected groups can violate state law even if there was no intent to discriminate. Employers must be able to show that a challenged policy truly matters to the job and that there is no less discriminatory way to achieve the same goal. This clarity arrives as federal agencies move away from disparate impact enforcement.

📄 The official announcement, adopted rules, and supporting materials are available from the New Jersey Office of the Attorney General.

What Disparate Impact Means for Employers

Disparate impact is about results, not motives.

A policy can be neutral on its face and still be unlawful if it disproportionately excludes people in a protected group and the employer cannot justify it. The new rules walk through that analysis step by step.

First, an employee or applicant must point to a specific policy or practice and show that it hits a protected group harder than others.

If that happens, the burden shifts to the employer.

The employer must show that the policy is actually necessary. In plain terms, that means the policy must be job-related and tied to a real business need, not habit, convenience, or “this is how we have always done it.”

Even then, the analysis does not stop. If there is another way to achieve the same goal with less harm to protected groups, sticking with the original policy can still create liability.

This framework has existed in case law for years. New Jersey has now put it into black-and-white regulations.

Employment Practices Most Likely to Draw Scrutiny

The Division did not leave employers guessing about where problems tend to arise. The rules repeatedly flag employment practices that often create disparate impact issues, including:

• Criminal background screening
• Language and citizenship requirements not required by law
• Dress, grooming, and appearance standards
• Hiring and screening criteria built into automated tools
• Resume filters and algorithmic scoring systems

One important point that often gets missed: a policy does not have to be in use to be challenged. If it has been approved, announced, or finalized, that may be enough.

AI Hiring Tools Are Not a Safe Harbor

One of the clearest messages in the rules is about technology.

If an employer uses software to screen applicants, rank resumes, analyze facial expressions, or otherwise influence hiring decisions, the employer owns the outcome. It does not matter that a vendor built the tool.

If the tool disproportionately screens out protected groups, the employer is responsible. The rules expressly require employers to take reasonable steps to make sure third-party tools comply with the Law Against Discrimination.

Blaming the algorithm is not a defense.

New Jersey Is Moving One Way. Federal Enforcement Is Moving Another.

The timing of these rules is not accidental.

At the federal level, disparate impact still exists on paper, but enforcement priorities have shifted. Federal agencies have narrowed guidance, rolled back regulations, and placed greater emphasis on intent-based discrimination instead of outcome-based claims.

New Jersey has made clear that none of that changes state law.

For employers, that means relying on federal enforcement trends as a risk gauge is no longer enough. In New Jersey, disparate impact remains very much alive and very much enforceable.

Practical Takeaways for Employers

Neutral policies still need scrutiny. “We did not mean to discriminate” is not the test.

Be ready to explain the why. Employers should be able to show how a policy actually relates to job performance or business needs.

Efficiency is not the trump card. A faster or cheaper policy can still be unlawful if there is a less discriminatory alternative.

AI requires oversight. Automated tools need testing and validation, not blind trust.

State law now drives risk. Federal pullback does not reduce New Jersey exposure, and it does not insulate employers from private lawsuits.

Bottom Line

New Jersey has drawn a clear line. Neutral employment policies that quietly exclude protected groups are no longer gray areas.

For employers, this is not about panic. It is about preparation. If hiring criteria, screening tools, or background check policies have not been looked at through a disparate impact lens, now is the time.

Waiting for a federal enforcement signal will not help in New Jersey.

After employment claims ran their course, a stockholder tried a new angle: dressing up workplace harassment as a fiduciary-duty lawsuit. The court wasn’t persuaded.

TL;DR: A court dismissed with prejudice a stockholder derivative lawsuit that tried to reframe a director’s and former officer’s workplace harassment as a breach of the duty of loyalty. The court held that the alleged misconduct was interpersonal and governed by employment and tort law, not corporate internal affairs. Fiduciary duty is exacting, but narrow, and it is not a catch-all remedy for workplace misconduct simply because the alleged wrongdoer held a title.

📄Read the court’s decision

A second lawsuit after the employment cases ended

The company was closely held, with two stockholders who also served as its only directors. One of them was a former officer.

According to the complaint, the former officer sexually harassed employees and exposed them to racist conduct. The allegations included offensive communications, inappropriate requests, exclusion from communications and a meeting, and threats of termination. Both employees resigned.

The employees filed EEOC charges, followed by lawsuits in New York state court. Those cases resulted in judgments totaling more than $1.8 million, including roughly $1.35 million entered jointly against the company and the former officer, plus additional judgments of more than $235,000 against each of them individually.

After those judgments were entered, the remaining stockholder filed a derivative action seeking to shift those losses to the former officer under a fiduciary-duty theory.

The theory the court rejected

The plaintiff’s argument was simple: harassment is selfish; selfish conduct is disloyal; therefore harassment is a per se breach of the duty of loyalty.

The court declined to expand fiduciary-duty doctrine into a general workplace misconduct regime.

Why this was not a fiduciary-duty case

The decision turned on a boundary employers and boards should understand.

Fiduciary law governs corporate internal affairs, including management of business assets, oversight of enterprise-level risks, and the use of corporate authority. Employment disputes are governed by the law of the place where the injury occurred and by comprehensive statutory schemes.

On the allegations pled, the complaint did not describe fiduciary conduct taken in the defendant’s capacity as a director or officer exercising specific delegated authority. None of the claims involved board-level decisions or misuse of corporate powers.

Instead, the alleged misconduct relied on general supervisory authority. As the court explained, any midlevel manager could have committed the same acts using the same means. However reprehensible, the conduct was personal misconduct, not a misuse of corporate office.

Allowing the claim to proceed would have erased the line between interpersonal workplace harm and corporate governance, turning fiduciary duty into a backstop for employment claims. The court refused to do that.

Why the court was wary of letting the case proceed anyway

The opinion also explained why repackaging harassment claims as derivative fiduciary suits creates problems.

Employment laws reflect legislative tradeoffs, including exhaustion requirements, limitations periods, damages caps in many regimes, and confidentiality and conciliation structures. Allowing derivative plaintiffs to sue over the same conduct risks an end-run around those frameworks.

The court also flagged a practical concern employers will recognize immediately. Harassment claims are fact-intensive and victim-centered. Turning them into public derivative litigation risks commodifying personal trauma and pulling victims into a forum not designed for that purpose.

What employers should take from the decision

First, serious workplace misconduct does not automatically become a governance claim. Even costly violations can remain squarely in employment-law territory.

Second, titles alone do not convert misconduct into fiduciary conduct. Capacity and delegated authority matter.

Third, how a company responds still counts. Termination, investigation, and appropriate remedial action remain critical to managing risk and limiting follow-on litigation.

Finally, do not overread the ruling. The court carefully distinguished cases involving enterprise-level responsibility, oversight failures, or misuse of specific corporate authority. Different allegations can lead to a different outcome.

Bottom line

Fiduciary duty is not a universal cleanup tool for workplace misconduct. When the harm is interpersonal and employment law already supplies the remedy, courts are not inclined to transform workplace disputes into corporate governance litigation simply because the wrongdoer held a title.

Before the champagne pops and the Slack notifications finally stop, it’s worth pausing to reflect on what actually defined the workplace this year.

Not the initiatives.
Not the slogans.
The refrains.

Some of these are healthy habits. Others are the phrases that tend to show up right before problems do.

Here’s what kept ending up on repeat in 2025.

🎧 Most Replayed Track

“Let Me Check with HR”
Played constantly.
A necessary checkpoint.
Better before the decision than after.

Best practice: HR is most effective when it’s involved early – while options still exist – not after a decision has already been communicated and needs to be unwound.

⏭️ Most Skipped Track

“We Don’t Need to Overthink This”
Said with confidence.
Followed by emails.
Ends badly.

Best practice: When something feels like “overthinking,” that’s often the signal to slow down, loop in HR, and document before momentum replaces analysis.

🔥 Breakout Hit

“The Interactive Process (Acoustic Version)”
Unexpectedly everywhere.
Stripped down. Repetitive. Requires patience.
Still widely misunderstood.

Best practice: Treat the interactive process as ongoing, not transactional. One conversation rarely resolves anything that matters.

💔 Most Defended Track

“We Didn’t Think This Was FMLA”
Played sincerely.
Usually too late.
Seldom persuasive after the fact.

Best practice: FMLA risk is assessed based on the information available at the time, not hindsight explanations. When an absence raises the possibility of a qualifying reason, the obligation to pause, inquire, and provide required notices is triggered – even if the employee never uses the words “FMLA leave.”

🎶 Comfort Song

“We’ve Always Done It This Way”
Familiar. Reassuring.
Also the track most likely to get the playlist flagged by legal.

Best practice: Longevity is not validation. Periodically pressure-test long-standing practices against current law, not institutional memory.

📈 Most Improved Track

“Document It”
Not everyone’s favorite.
But the improvement is noticeable.

Best practice: Contemporaneous documentation – not reconstructed explanations – is what actually helps when decisions are challenged later.

🧨 Track That Caused the Most Problems

“It’s Probably Fine”
It was not fine.

Best practice: If a decision triggers that phrase, pause. That’s usually the moment to ask one more question or make one more call.

The Wrap-Up

Spotify Wrapped doesn’t judge. It just reflects what played the most.

Workplaces are no different.

The phrases that repeat themselves shape decisions long before anyone notices the pattern. Year-end is a good moment to recognize what keeps resurfacing – and which habits are worth carrying forward.

Safety policies should protect workplaces, not produce eight-figure ADA exposure. This case shows how a rigid medical rule, applied without individualized assessment, can turn a routine injury into a litigation disaster.

TL;DR: A jury found that an employer violated the Americans with Disabilities Act and Oregon disability law by enforcing a blanket medical policy that unlawfully screened out an employee instead of evaluating his actual abilities. The jury issued an advisory award that included $25 million in punitive damages, and the court declined to disturb the verdict.

📄 Read the court’s decision

Employers often try to manage overtime by adjusting schedules, staffing, or compensation models.

What they cannot do is manage overtime by adjusting the “regular rate” in a way that only shows up when overtime does.

That distinction mattered here.

TL;DR: A federal appeals court affirmed summary judgment for an employee where the employer reduced the employee’s non-overtime hourly rate only during overtime-heavy weeks and restored the higher rate once overtime stopped. Because the employer failed to identify any legitimate factor other than the length of the workweek to justify the reduction, the court treated the rate change as an impermissible device to evade the Fair Labor Standards Act’s overtime requirements. The court also affirmed a substantial award of attorney’s fees and mediation costs.

📄You can read the full decision here

A Rate Change That Appeared Only When Overtime Did

The case centers on whether an employer may reduce an employee’s hourly rate only during overtime-heavy weeks without violating federal overtime law.

For years, the employee worked a standard schedule and earned a steady hourly rate, with overtime paid at time-and-a-half when applicable.

That changed when the employer began scheduling the employee for at least 60 hours per week. At that point, the employer lowered the employee’s non-overtime hourly rate and paid overtime at time-and-a-half of the reduced rate.

The timing mattered.

The lower rate applied only during periods when the employee was regularly working overtime. Once the employer stopped scheduling overtime, it restored the higher hourly rate.

Those facts were undisputed.

The Legal Problem With the “Regular Rate”

The Fair Labor Standards Act requires overtime pay at one-and-a-half times the employee’s regular rate. And the regular rate is not a label the employer gets to choose. It is an actual fact based on what the employee is paid for non-overtime work.

Employers generally have flexibility to set hourly rates, subject to minimum wage and overtime requirements.

But that flexibility has limits.

The Eleventh Circuit underscored the boundary in its earlier decision, explaining that an “employer may reduce” its employees’ regular rates to accommodate scheduling preferences “so long as the rate reduction was not designed to circumvent the provisions (including overtime) of the [FLSA].”

Consistent with that principle, the court noted that a reduction in the regular rate cannot be justified solely by the length of the workweek. When the only reason for the lower rate is that the employee is working overtime, the reduction becomes an impermissible device to evade overtime obligations.

Employee Agreement Did Not Cure the Problem

The employer argued that the employee accepted the lower rate in exchange for guaranteed overtime hours and higher overall weekly pay.

That argument went nowhere.

Under the Fair Labor Standards Act, employees cannot contract away their right to overtime. Whether a pay arrangement makes economic sense to an employee is beside the point if the structure defeats the statute’s purpose.

The question was not consent. It was justification.

And the employer could not identify any legitimate factor other than overtime scheduling to explain the rate reduction.

Why This Is a Payroll-Design Case, Not a Timekeeping Case

This case did not involve off-the-clock work, missing time records, or falsified hours.

It involved payroll design.

Courts look closely at patterns like these:

• One hourly rate during non-overtime weeks
• A lower rate that appears only when overtime begins
• Restoration of the higher rate when overtime ends
• No explanation other than the number of hours worked

That pattern raises a red flag because it undermines the core purpose of overtime – placing financial pressure on employers and compensating employees for long workweeks.

Attorney’s Fees Can Eclipse the Wage Claim

The employer also challenged the attorney’s-fee award. The appellate court affirmed it.

The district court entered final judgment in favor of employee for $5,650.82, representing unpaid overtime compensation and liquidated damages. The fee award, however, exceeded $94,000, plus additional mediation costs.

That is a familiar wage-and-hour lesson. Even relatively modest overtime disputes can generate significant fee exposure when the pay practice itself is found unlawful.

Practical Takeaways for Employers

• Review any rate changes that correlate with overtime scheduling. Timing matters.
• Do not rely on employee acceptance or perceived fairness as a compliance strategy.
• Separate labor-cost management from wage-and-hour compliance decisions.
• Make sure HR, payroll, and operations understand how regular-rate issues arise.
• Assume that plaintiffs’ lawyers will analyze the math closely.

Bottom Line

Paying time-and-a-half is not enough if the regular rate is manipulated to make overtime meaningless.

If overtime disappears on a spreadsheet, courts are likely to notice – and the real cost may come later in attorney’s fees.

A Helpful Guide for People About to Hit “Send” Anyway

Despite decades of evidence, some professionals continue to believe Christmas Eve is an appropriate time to introduce new thoughts into the workplace. It is not.

For those who remain uncertain, what follows is a non-exhaustive list of email subject lines that function as a legally binding confession: I should not be sending this today.

“Quick question.”
Translation: I am about to create a situation. This question will require background, documentation, at least one follow-up, and someone who has already mentally clocked out and is holding a mug of something stronger than coffee.

“Before the end of the year…”
A classic. Usually deployed by someone who has known about this issue since at least Q2 and has chosen December 24 as the moment of truth. Often paired with the phrase “shouldn’t take long,” which has never once been accurate.

“Just flagging.”
Flagging is what people do when they want credit for raising an issue without responsibility for resolving it. Congratulations. The flag has been noted. It will be gently placed back on your desk in January.

“Can you review this today?”
Bold. Confident. Almost admirable. This email presumes availability, willingness, and that “today” means the same thing to everyone involved. None of these assumptions hold.

“Need a quick call.”
No, you need comfort. You are seeking reassurance that the decision you already made will not blow up while everyone else is unreachable. A call will not provide that reassurance.

“FYI.”
This is not an FYI. This is a task wearing a fake mustache. Removing the mustache does not make it festive.

“URGENT.”
If it were urgent, it would not be arriving on December 24. If it is both urgent and vague, you have successfully activated someone’s stress response while providing no actionable information.

“Following up on the below.”
The “below” is from October. Christmas did not cause the delay. Time did not get weird. You simply waited.

“Thoughts?”
My thoughts are that this email should have stayed in drafts until January 2. My other thoughts are none of your business until then.

Christmas Eve emails have a certain seasonal quality. They exist. They circulate. They accomplish very little. The lights are on, the inbox is open, and everyone quietly agrees this is mostly theater.

Which brings us, briefly, to lawyers.

Christmas Eve is also an excellent day to remember the ancient legal custom of the courtesy deadline extension. Absent extraordinary circumstances – and “I just realized this was due” does not qualify – nothing meaningful is accomplished by forcing opposing counsel to scramble on December 24. No one wins. No record is enhanced. No one later says, “I’m glad we were aggressive about that.”

Most of the time, the courtesy is repaid. And if it isn’t, January is a much better month for grudges.

Which is fine. Every workplace needs traditions.

Happy holidays [and whatever it is you celebrate]!

This case is a reminder that the ADA interactive process is about engagement, not just documentation. When an employer waits too long, courts start asking why.

That question sat at the center of this dispute and ultimately kept the case alive.

TL;DR: An employer could not defeat an ADA reassignment claim by arguing that it had no obligation to act until it received updated medical documentation where the employee’s disability was already known, prior accommodations had been granted, and the record showed disputed facts about whether paperwork was required before reassignment consideration. Medical documentation is part of the interactive process, not a legal pause button.

📄 Read the court’s decision

How the reassignment dispute unfolded

The case arose from an enforcement action brought by the Equal Employment Opportunity Commission on behalf of a former nurse who worked for a hospital in Michigan. The EEOC alleged that the employer violated the Americans with Disabilities Act by failing to reassign the employee to a vacant position as a reasonable accommodation.

Several facts were not disputed. The employee had a diagnosed, degenerative medical condition. The employer knew about it, had medical documentation on file, and had previously granted ADA accommodations, including reduced hours.

Later, the employee applied for three internal positions that were posted as vacant, with a dispute about whether one position was actually open. All three positions were filled before she submitted updated medical documentation several months later.

Those facts framed the employer’s argument that it had no obligation to act until additional medical documentation was provided.

Why the documentation argument failed

The employer raised that argument in a motion for reconsideration, which the court noted had not been presented earlier as a case-ending theory. The court nonetheless addressed the substance and rejected it.

Employers may request medical documentation during the interactive process. But the law does not support the proposition that updated medical documentation is required as a matter of law before an employer must take any action, or that an employer may pause the interactive process entirely when it is already on notice of a medically diagnosed disability.

This was not a case where the employer lacked notice of the disability or needed medical documentation to determine whether one existed. The employee had already provided medical information, and the employer had already accepted it and acted on it by granting accommodations. The dispute concerned whether the employer could stop engaging altogether while waiting for updated paperwork.

Under those circumstances, a jury could reasonably find that insisting on additional documentation before doing anything at all amounted to stalling rather than participation in the interactive process.

The factual disputes that kept the case alive

The record also undercut the employer’s position.

There was evidence that the employer requested additional medical documentation. But there was also evidence that the employee was never clearly told that paperwork was mandatory before she could be considered for reassignment.

HR communications encouraged her to apply for open positions and forwarded applications without stating that documentation was a prerequisite. Testimony suggested the medical form would assist or expedite the process, not that it was required to begin it.

Those disputed facts were enough to defeat early judgment.

Vacancies and after-the-fact defenses

The employer also argued that the positions were no longer “vacant” once they were filled before the additional documentation arrived.

The court disagreed, noting that the employee applied while the positions were posted and that at least one decisionmaker declined to consider her application for reasons unrelated to medical documentation.

Courts look at what actually motivated decisions at the time, not explanations built later.

What this decision means for employers

For employers, the significance of the decision lies less in how the case ultimately resolves and more in why it could not be resolved early.

The first lesson is about context. When an employer already has medical documentation and has already granted accommodations, requests for additional information refine the process. They do not reset it.

The second lesson is about clarity. If documentation truly is required before reassignment consideration, that requirement must be clearly communicated and consistently applied. Mixed signals create factual disputes courts will not resolve on paper.

Bottom line

Documentation matters. But it does not replace engagement in the interactive process.

Sometimes retaliation isn’t loud. There’s no demotion, no firing, no pay cut. It shows up quietly instead – more work than everyone else gets, repeated just often enough to send a message.

That kind of retaliation can be harder to spot, but as a recent decision out of the District of Columbia shows, it can still land an employer in serious trouble.

TL;DR: After a jury verdict, a federal court refused to undo a retaliation finding where a supervisor assigned an employee a disproportionate share of onerous “on-call” duty weeks following protected activity. Extra workload can qualify as materially adverse even if nothing dramatic happens during the assignment.

📄 Read the court’s decision here

When “on-call” isn’t just part of the job

The employee worked in a role that required periodic “duty weeks” – being on call 24/7, restricted in travel, and responsible for responding to emergencies. Nobody loved those weeks, but they were supposed to rotate evenly among the team.

After engaging in protected activity, that rotation broke down. Over a relatively short period, the employee was assigned four duty weeks in a 12-week span, even though the normal rotation was roughly one duty week every eight weeks. The result was less personal freedom, more stress, and far more disruption than her colleagues experienced.

The employer insisted this was no big deal. Duty weeks were part of the job. The assignments were temporary. And nothing serious happened while the employee was on call.

A jury disagreed. So did the court.

How “adverse” is adverse, anyway?

After the verdict, the employer asked the court to step in and erase the retaliation finding, arguing that extra workload alone isn’t enough to qualify as retaliation.

The court rejected that argument.

For retaliation purposes, an action is materially adverse if it might dissuade a reasonable employee from engaging in protected activity. That standard does not require termination, demotion, or a pay cut. Work assignments can qualify when they meaningfully burden an employee’s time, freedom, or quality of life.

Here, the evidence showed that duty weeks:

• Required 24/7 availability
• Restricted travel and off-duty activities
• Added responsibility on top of regular job duties
• Carried the potential for responding to serious emergencies

Assigning more of those weeks to one employee than others was enough for a reasonable jury to find retaliation.

Why “nothing bad happened” didn’t save the employer

The employer also argued that nothing significant actually occurred during the extra duty weeks. According to the defense, the employee responded to no major emergencies and, at most, received a single phone call.

That missed the point.

The court explained that retaliation occurs when the assignment is made, not when something bad happens. The burden, the restriction, and the message sent to the employee are what matter. An employer cannot avoid liability simply because the worst-case scenario never materialized.

Where the defense really fell apart

The employer also claimed the duty weeks were assigned neutrally and consistent with past practice.

But the jury heard conflicting evidence about how the rotation was supposed to work, how often others were assigned duty weeks, and why this employee’s schedule suddenly changed. Those were credibility questions, and credibility determinations belong to the jury. The court refused to second-guess that call.

Employer takeaways

Employers should take several lessons from this decision:

First, workload can be retaliation. Extra assignments, undesirable shifts, and temporary burdens can qualify if they meaningfully affect an employee and follow protected activity.

Second, visible harm is not required. The question is whether the action could deter a reasonable employee from speaking up, not whether disaster actually struck.

Third, rotation systems live or die on consistency. If assignments are supposed to rotate, they must actually rotate. Deviations need legitimate, documented explanations.

Finally, informal punishment is still punishment. Courts and juries are increasingly skeptical of retaliation that hides behind “just part of the job.”

Bottom line

Retaliation claims don’t always come wrapped in dramatic employment actions. Sometimes they’re buried in schedules, assignments, and seemingly minor workload decisions.

And those are often the hardest ones to defend.

In an ADA retaliation case, a positive marijuana test looked like a clean exit. It wasn’t.

What tripped up the employer wasn’t the test result itself, but how the termination decision unfolded around it – including uneven discipline, disputed facts, and timing tied to disability-related absences.

TL;DR: A federal court allowed an ADA retaliation claim to proceed even after an employee was terminated following a positive marijuana test. Evidence that the employer treated the employee more harshly than others, combined with conflicting accounts of what prompted the termination and its timing shortly after accommodation-related absences, was enough to send the case to a jury.

📄 Read the court’s decision

The setup: disability, accommodations, and a “gummy”

The employee was a long-tenured hospital manager with a serious spinal condition. Over the years, he received multiple accommodations, including medical leave and a modified schedule. By early 2021, management knew his condition was worsening and that he was missing full days of work for physical therapy.

That context mattered.

In January 2021, the employee led a staff meeting. Afterward, subordinates raised concerns about his demeanor and comments about eating a “gummy.” According to the employer, he appeared lethargic, talked about being “high,” discussed marijuana gummies, and even drew a picture showing how much to eat.

The employee told a different story. He said he discussed an over-the-counter CBD gummy, not marijuana, that it made him sick rather than high, and that his doctor recommended CBD for pain. He denied drawing any picture or admitting marijuana use and said the employer already knew about his CBD use.

A drug test – and then termination

Management initiated a fitness-for-duty investigation. The employee denied marijuana use, acknowledged CBD use, and agreed to a drug test. The test came back positive for marijuana metabolites. The parties disputed the levels and whether CBD use could have contributed.

About two weeks later, the employer terminated him.

Why the employer couldn’t end the case

The employer pointed to three reasons for termination: the staff-meeting conduct, the positive marijuana test, and alleged dishonesty. Any of those could justify termination.

The problem was consistency.

Uneven discipline raised red flags

The record showed evidence that:

• The employer had a policy allowing employees who tested positive for drugs or alcohol to return to work under a last chance agreement.

• HR witnesses could not identify another non-probationary employee terminated for a first marijuana offense.

• Third-party case managers were surprised the employee was terminated outright.

That was enough for a jury to conclude the employee was treated more harshly than others.

The “gummy” story didn’t hold together

The employer’s account of the staff meeting was disputed in key ways:

• A subordinate testified the employee did not appear lethargic or discuss THC gummies.

• Evidence suggested decision-makers relied on information they may not have actually seen at the time.

• Alleged admissions of marijuana use were denied by the supposed listeners.

The court didn’t decide who was right. It held only that a jury could reasonably disbelieve the employer’s version – classic pretext territory.

Timing tied it together

All of this happened shortly after management knew the employee’s condition was worsening and that he needed time away for treatment. That timing, combined with disputed facts and uneven discipline, was enough to keep the retaliation claim alive.

The bottom line

Positive marijuana tests often win cases. Inconsistent explanations can sink them. Here, the employer’s inability to explain why termination was chosen over lesser discipline was enough to send the case to a jury.

Failure-to-accommodate claims usually turn on what an employer didn’t do.

Here, the more interesting question was whether there was any ADA duty to begin with.

TL;DR: A request for an accommodation does not, by itself, establish that an employee is disabled under the Americans with Disabilities Act (ADA). Employers have obligations when a qualifying disability exists, but a short-term restriction, even one supported by a doctor’s note and honored by the employer, does not automatically trigger ADA liability. Where there is no underlying disability, failure-to-accommodate claims fail.

📄 Read the court’s decision

What happened

The employee worked in housekeeping and initially performed well. Over time, management documented performance issues, including absenteeism, incomplete work, and guest complaints.

After multiple warnings, the employee submitted a short-term “light duty” note from a chiropractor limiting bending and lifting for less than a week. The employer honored the request.

Days later, after another incident involving guest conduct, the employer terminated the employee. The employee sued, alleging disability discrimination and failure to accommodate.

Why the failure-to-accommodate claim failed

The claim did not fail because the employer denied an accommodation. It didn’t.

It failed because there was no evidence of a qualifying disability.

The record showed:

• No medical diagnosis establishing a physical impairment that substantially limited a major life activity
• No evidence tying the brief restriction to a chronic or long-term condition
• No notice to the employer of any qualifying disability before the restriction was submitted

An accommodation request alone does not establish ADA coverage.

If you’re wondering what the alleged failure to accommodate even was, that’s the point. The employee’s theory was that requesting light duty automatically created ADA protection. Once that premise failed, the claim collapsed.

Temporary restrictions don’t automatically trigger the ADA

Short-term limitations, especially ones measured in days, do not automatically qualify as disabilities under the ADA.

Just as important, an employer does not concede ADA coverage by temporarily honoring a restriction while assessing the situation.

Without proof of a qualifying disability, there is no accommodation duty to breach.

Employer takeaways

• Most accommodation requests involve real disabilities. In practice, the focus should usually be on engaging in the interactive process and identifying workable accommodations.
• A request is not proof. ADA obligations depend on an underlying disability, not the mere act of asking.
• Temporary restrictions are different. Short-term limitations may fall outside the statute.
• Flexibility is not a legal admission. Honoring light duty does not concede ADA coverage.
• Process still matters. Listen, document, and respond consistently to every request.

Bottom line

Accommodation requests matter. Most of the time, they involve real disabilities and should be treated seriously.

But asking for an accommodation is not the same thing as being disabled. And without a qualifying disability, a failure-to-accommodate claim will fail.

The Tenth Circuit just delivered a reminder that when decisionmakers rely on a flawed investigation, the process can matter as much as the decision itself.

TL;DR: The Tenth Circuit revived two Title VII retaliation claims after a physician reported alleged sexual harassment by another doctor and was later terminated and reported to a state licensing board. Although an investigation alone is rarely actionable retaliation, the court held a jury could find that a one-sided internal investigation – including skipped interviews, selective fact-gathering, and uncritical reliance by senior decisionmakers – supplied the retaliatory animus and causation for materially adverse actions under a cat’s paw theory.

Retaliation requires awareness. Without it, there’s no causal link—no matter how suspicious the timing may feel. A recent Third Circuit decision underscores a see-no-evil, hear-no-evil reality employers should understand.

TL;DR: The Third Circuit affirmed summary judgment on retaliation claims, holding that discipline imposed after internal complaints failed where decision-makers lacked knowledge of protected activity, the employer acted before the complaint was even filed, or neutral processes broke the causal chain. Retaliation claims still require proof of causation, not just workplace conflict.

📄Read the Third Circuit’s decision

The setup: complaints, discipline, and a familiar retaliation theory

An employee working as a corrections sergeant filed multiple internal complaints alleging race and gender discrimination. Over time, she received discipline, including a written reprimand and a twenty-day suspension following a training incident.

She sued under Title VII of the Civil Rights Act of 1964, the New Jersey Law Against Discrimination, and federal civil rights statutes, asserting retaliation.

On summary judgment, the district court sided with the employer. The Third Circuit affirmed.

Retaliation still turns on causation, not vibes

To establish retaliation, an employee must show protected activity, a materially adverse action, and a causal connection between the two.

The court did not need to resolve every dispute about whether the discipline was materially adverse. The claims failed for a simpler reason: causation.

Key problems for the employee:

• No knowledge, no retaliation. Several disciplinary decisions were made by individuals with no evidence that they knew about the employee’s prior protected activity. Without knowledge, retaliation is impossible.
• The timing didn’t work. One alleged retaliatory act happened before the employee filed the complaint she said triggered it. You can’t retaliate against a complaint that hasn’t been made yet.
• Neutral decision-making matters. The most serious discipline followed a hearing before a neutral officer. There was no evidence that the decision-maker knew about protected activity or acted with retaliatory motive.

Put differently, proximity alone did not carry the claim. The record lacked evidence connecting the dots.

What employers should take from this decision

1. Knowledge remains a gatekeeper.
Retaliation claims rise or fall on who knew what, and when. Clean documentation of decision-makers and information flow matters.

2. Neutral processes still work.
Independent investigations and hearings can break the causal chain when done correctly.

3. Timing cuts both ways.
Courts look carefully at sequencing. Discipline that predates protected activity is not retaliation, no matter how it is later characterized.

4. Not every workplace dispute is retaliation.
Internal complaints do not immunize employees from discipline, especially for documented conduct issues.

The bottom line

Timing alone doesn’t make a retaliation case. Knowledge, causation, and clean process still matter – and courts continue to enforce those limits.

The EEOC’s decision to pull back from investigating disparate impact claims has been loud, controversial, and headline-worthy. And for employees watching their charges get administratively closed in real time, it can feel like the agency has simply walked away. But federal courts are not there to referee agency priorities or second-guess investigations.

TL;DR: A federal court dismissed an employee’s lawsuit against the EEOC after the agency administratively closed her disparate-impact charge following a shift in enforcement priorities. The court held that charging parties have no judicially cognizable right to a particular EEOC investigation, and no standing to force the agency to reopen one. Whatever the EEOC does or does not do, Title VII of the Civil Rights Act of 1964 claims are litigated de novo against the employer – not the agency.

📄Read the decision

Sometimes courts resolve complex employment issues. And sometimes they are asked whether an employee suffered legal harm because she didn’t get to say goodbye to coworkers.

Buckle up.

TL;DR: A federal appellate court just affirmed summary judgment against an employee who quit, gave two weeks’ notice, was paid for the full notice period, and then argued on appeal that her actionable harm was being unable to finish out the remaining eleven days so she could say goodbye to coworkers and residents. The court rejected that last-minute theory because she never raised it in the district court.

📄Read the decision

The Alleged “Runaway Harm”: No Chance to Say Goodbye

An employee complained about a coworker’s sexual harassment. She later quit, giving two weeks’ notice.

Three days later, the employer told her she could leave immediately and would be paid for the whole notice period. Most employees would gladly accept that outcome. She called a lawyer.

In the district court, she claimed constructive discharge. When that argument failed, she abandoned it on appeal. According to the appellate opinion, she reframed her harm as this:

The employer should have let her work the remaining eleven days so she could say goodbye.

That was the harm.
Not wages. Not discipline. Not benefits.
A missed farewell tour.

Because she didn’t present this theory below, the appellate court refused to consider it.

Takeaways from this?

Believe it or not, yes. And here are the three that actually matter for employers:

At-will employees don’t have a right to work the full notice period, and employers don’t have to host a farewell tour

If an at-will employee resigns, you may end their employment immediately. Paying out the notice period is often a courtesy, and there is no legal requirement to let the employee stay on to say goodbye or complete their own “farewell tour.”

Lock down access and collect company property

When an employee’s last day moves up, make sure email, systems, building access, and remote connections are disabled promptly. Don’t forget to collect badges, keys, laptops, and other company equipment to protect data and security.

Don’t forget your state’s final-paycheck rules

If you accelerate an employee’s last day, their “final day of work” may legally shift, which can trigger earlier deadlines for issuing the final paycheck, unused PTO payouts, or wage statements under state law.

The Bottom Line

If an employee is stretching a farewell into a federal case, you’re probably safe. Still, a well-managed offboarding process is the best protection against claims that actually stick.

Congress is not slowing down on AI regulation. Weeks after lawmakers introduced a bill requiring employers to track how many jobs AI creates and eliminates, another proposal has arrived that targets how employers actually use AI at work.

TL;DR: The No Robot Bosses Act would create sweeping new federal rules for how employers use AI in employment decisions, including bans on exclusive reliance on automated tools, mandatory bias testing, annual audit disclosures, and a right for employees to appeal AI-assisted decisions to a human reviewer.

📄 Read the summary
📄 Read the full bill text
📄 Read the press release

Congress is pushing multiple AI bills at once

Earlier this month, I wrote about a related proposal that would require employers to report how many jobs AI is creating, eliminating, or reshaping. You can read that analysis here. That bill focuses on workforce transparency. The No Robot Bosses Act goes further by establishing guardrails for how employers deploy automated tools in hiring, management, and discipline. Together, the proposals preview a federal framework for AI in the workplace.

What the No Robot Bosses Act would require

At its core, the bill bars employers from relying solely on automated decision systems to make employment-related decisions. A human still has to be involved, and not just as a rubber stamp. Before an employer may use an algorithm’s output to influence a decision, a qualified person must review and confirm the result.

The bill also requires pre-deployment testing of automated systems to identify discrimination risks or other bias. That testing must continue over time through periodic evaluations to ensure the tools operate fairly and effectively.

And employers cannot simply purchase a tool and let it run. The bill requires training for anyone who uses or depends on these systems, including their limitations and risks.

Mandatory transparency for applicants and employees

Employers would have to provide timely disclosures explaining when they use automated tools, what information the system collects, what it measures, and how the employer intends to use the resulting output. Workers would also be informed of their rights, including the ability to challenge an automated output and request human review.

A worker opt-out for algorithmic management

If an employer uses AI to manage employees, for example scheduling, productivity monitoring, or workflow assignments, the bill would require offering a human-managed alternative. Workers would not be forced to accept algorithmic oversight for day-to-day management.

Enforcement with real penalties

The bill also creates a Technology and Worker Protection Division within the Department of Labor to regulate automated decision systems in the workplace and enforce compliance. It authorizes private lawsuits with treble damages, penalties up to 40,000 dollars for willful misuse of AI, penalties up to 100,000 dollars for retaliation, and temporary whistleblower reinstatement.

What employers should be doing now

Audit your AI tools

Inventory the systems used in hiring, evaluation, monitoring, and scheduling. Many employers have more AI running quietly in the background than they realize.

Build human review into every step

Even under current law, relying solely on automated output is risky. A qualified human should review any AI generated recommendation before taking action and be prepared to explain how it influenced the decision.

Prepare for transparency

Most employers cannot yet explain how their vendors’ systems work. The No Robot Bosses Act assumes you can. Now is the time to gather documentation, understand inputs and outputs, and train staff who use or rely on these systems.

The bottom line

Between the workforce-reporting bill and the No Robot Bosses Act, Congress is sending a clear message. Federal expectations around AI transparency, fairness, and human oversight are rising. Employers that act now will reduce legal risk and avoid a scramble if federal rules materialize.

A single disclosure from a job applicant about her methadone prescription allegedly turned a routine interview into an ADA problem the EEOC now wants a court to resolve.

TL;DR: The EEOC has sued concrete-industry employers, alleging they refused to hire applicants who lawfully use methadone or other medication-assisted treatment (MAT) for opioid-use disorder, asked prohibited pre-offer medical questions, and enforced a blanket “no methadone” rule. This post also explains how a recent federal decision frames ADA claims involving MAT, why categorical bans often fail, and what the EEOC expects from employers navigating these issues.

📄 Read the official EEOC press release.

What the EEOC says happened

According to the EEOC, a job applicant for a laborer role was allegedly asked about her medications before any conditional offer was made. When she disclosed prescribed methadone, she was allegedly told she could not be hired due to an internal policy barring applicants who use methadone. A human-resources representative allegedly confirmed the same.

The EEOC also claims that a broader class of applicants was affected by this rule, which allegedly excluded individuals using methadone, Suboxone, or similar MAT medications.

The lawsuit asserts ADA violations tied to denial of hire, unlawful qualification standards, prohibited pre-offer inquiries, and the use of information obtained through those inquiries.

How a recent federal decision frames these issues — and how courts generally approach them

A federal decision involving similar allegations provides helpful context for understanding how methadone and medication-assisted treatment fit into the ADA framework. In analyzing the plaintiff’s claims, the court summarized how courts generally treat these issues.

First, the decision reiterates that methadone taken under medical supervision is not “illegal drug use” under the ADA. The statute excludes lawful, supervised use from the definition of illegal drug activity, and courts applying the ADA consistently recognize this distinction.

Second, the decision emphasized that blanket rules disqualifying applicants who use methadone can violate the ADA. Citing other cases, the court explained that applicants cannot be rejected solely because of prescribed methadone use without an individualized assessment tied to actual job requirements and safety considerations.

Third, the court noted that rescinding a job offer because of prescribed methadone use may support a “regarded as” disability claim. Courts evaluating similar scenarios have found that such actions often reflect assumptions about impairment rather than individualized, objective evaluation.

Finally, the court declined to dismiss a punitive-damages claim, observing that immediately withdrawing an offer after a methadone disclosure could plausibly show reckless indifference to federal rights. The court pointed to other decisions taking a similar approach and emphasized that whether punitive damages are appropriate depends on the factual record.

This decision does not resolve the EEOC’s new lawsuit, but it provides a framework for analyzing claims involving methadone and MAT — and why categorical rules often fail under that framework.

Employer takeaways

Review hiring and drug-testing practices

The EEOC has stressed that employers may not impose barriers that screen out applicants in recovery from opioid addiction — including those lawfully using methadone or other MAT medications. Automatic exclusions in this space are enforcement red flags.

Train interviewers to avoid pre-offer disability questions

The EEOC views pre-offer questions likely to elicit disability information as a serious violation. All applicants, with or without disabilities, are entitled to a hiring process free from those inquiries until a conditional offer is made.

Handle safety concerns with individualized, evidence-based assessment

The EEOC expects employers to evaluate actual, objective risks — not generalized assumptions about addiction or MAT medications. Safety concerns must be supported by individualized medical information obtained at the correct stage of the process.

Understand your responsibilities in labor markets affected by the opioid epidemic

The EEOC has emphasized its commitment to protecting workers in addiction recovery, particularly in industries and regions heavily impacted by opioid misuse. Employers in these environments should expect heightened scrutiny.

Recognize the risk of enhanced damages

Withdrawing an offer based on lawful MAT use — particularly without individualized assessment or in disregard of clear ADA rules — may lead to punitive damages claims the EEOC is prepared to pursue.

The bottom line

ADA compliance begins at the hiring stage. Employers relying on categorical restrictions or assumptions about methadone — rather than individualized, evidence-based assessment — risk exactly the type of scrutiny the EEOC is now bringing.

How can you tell if your business is big enough to trigger federal or state employment laws? A recent Ninth Circuit case illustrates just how complicated that question can get. Two columns in a payroll spreadsheet generated two different employee counts, creating a triable issue about legal coverage.

TL;DR: A Ninth Circuit panel revived an Americans with Disabilities Act (ADA) lawsuit because conflicting payroll columns created a genuine factual dispute about whether the employer met the statute’s 15-employee threshold. That uncertainty alone required a jury to sort it out, and the lesson applies broadly to employee counting under many federal and state employment laws.

📄 Read the decision

A case about the ADA that really teaches a broader lesson

The plaintiff challenged whether her employer was large enough to fall under the ADA. The employer argued it never hit the 15 employee threshold for 20 weeks. Under the ADA, and other federal anti discrimination laws like Title VII, an employer is covered if it has at least 15 employees for at least 20 different workweeks in either the current or the previous calendar year. The rule is designed to exclude very small employers, but it also means that coverage can turn on payroll timing, classification decisions, and who counts as an employee in any given week.

The plaintiff said the records told a different story.

The Ninth Circuit agreed that the records were unclear. The culprit was a payroll exhibit with two different employee tallies:

A payroll exhibit included two columns:

• one listing the number of employees at week start, and
• one listing the number of employees at pay date.

Depending on which column you use, the employer either met or did not meet the threshold. That inconsistency did not answer the legal question. It created a triable issue of fact that only a jury can resolve.

And while this case involved the ADA, the problem is universal. Many employment laws hinge on how employers count employees. Mistakes, inconsistencies, and wrong assumptions about who counts can send employers into litigation before ever reaching the merits.

For example, the decision also turned on which individuals counted as employees under a Supreme Court common law agency test. The two principals could be treated as employees for headcount purposes. Another individual who appeared only once, years later, could not be counted at all.

If this sounds familiar, it should. I previously created a numerosity guide listing coverage thresholds for various employment laws. This case is an example of how determining those thresholds can become a factual dispute.

What employers and HR must understand about counting employees

1. Federal employment laws use different headcount rules

Title VII and the ADA start at 15 employees. The ADEA starts at 20. The FMLA starts at 50 within 75 miles. GINA is 15. USERRA covers almost everyone. Courts often use the payroll method to determine whether someone appears on payroll during the relevant weeks. Small changes in weekly headcount can change coverage.

2. Part time, seasonal, and unexpected individuals may count

Part time and seasonal employees generally count if they appear on payroll during the relevant weeks. Owners, partners, or principals may also count if the organization exercises enough control over their work. These inclusions can push an employer over the threshold.

3. State and local laws may apply with far fewer employees

Federal coverage starts at 15, 20, or 50. State and local laws often start at 1, 2, 4, or 5. Many employers who are too small for federal laws are still covered under state anti discrimination statutes.

4. Payroll inconsistencies can create legal exposure

If different payroll columns tell different stories, courts cannot resolve coverage on summary judgment. A single inconsistency can force litigation over whether the law applies.

5. If you hover near any statutory threshold, assume coverage

If your headcount regularly fluctuates near 15, 20, or 50, it is safer to build compliance than to litigate whether compliance was required in the first place.

The bottom line

Good compliance practices do not start or stop at 15, 20, or 50 employees. Headcount simply tells you which additional rules apply.

Sometimes the biggest workplace stories are the ones that hit closest to home for HR professionals. A recent jury verdict involving the Society for Human Resource Management (SHRM) is one of those moments, not because of who the defendant was, but because the issues are ones every employer faces.

A Colorado jury awarded $11.5 million to a former SHRM employee on race discrimination and retaliation claims, as first reported by Business Insider. The plaintiff alleged unequal treatment, escalating pushback after raising concerns, and termination soon after complaining internally. SHRM maintained it acted properly and that the decision was based on performance.

After the ruling, SHRM publicly stated that it strongly disagrees with the verdict, believes it acted with integrity and transparency, and will appeal to the highest courts. Employers do not need to take a side to learn from what happened. The themes in this case surface in workplaces of every size.

1. Retaliation Risk Can Overshadow Everything Else

Once an employee reports discrimination, timing becomes a critical part of the story. Any adverse action shortly after a complaint must have clear, well documented support that predates the protected activity. Retaliation cases often succeed because the sequence of events looks suspicious in hindsight rather than because of proven intent.

2. Performance Management Must Be Even and Documented

The plaintiff described shifting expectations and differential oversight. SHRM emphasized missed deadlines and repeated extensions. Employers should clearly communicate expectations, enforce them consistently, and document legitimate business reasons for any exception. Perceived unevenness fuels litigation.

3. Investigations Must Be Thorough and Credible

SHRM asserted that HR interviewed witnesses, reviewed documents, and facilitated mediation. The plaintiff described the process differently. For employers, a credible investigation is prompt, impartial, confidently documented, and clearly communicated. It is also the employer’s best opportunity to resolve issues early and to demonstrate fairness later.

4. Public Values Shape Jury Expectations

SHRM’s visibility as an HR authority made the case more notable, but this dynamic applies broadly. When employers promote values like fairness, inclusion, or accountability, juries expect internal practices to reflect those commitments. Public messaging becomes a lens through which decisions are judged.

5. Juries Focus on Credibility and Consistency

The plaintiff said she raised concerns with multiple leaders. SHRM said it investigated, extended deadlines, recommended mediation, and ultimately terminated the employee for incomplete work. Juries often evaluate not just the facts, but whether the employer’s actions appear steady, documented, and believable.

Takeaways for Employers

1. Document consistently and contemporaneously.
2. Review any post complaint decision through a retaliation lens.
3. Apply performance expectations evenly and explain business driven deviations.
4. Conduct investigations that are timely, structured, and impartial.
5. Ensure that public values align with internal practices.

The Bottom Line

Whether this verdict stands on appeal or not, the underlying lesson will not change. Employers must take internal complaints seriously, document clearly, investigate thoroughly, and avoid retaliation at all costs. Trials expose process weaknesses with brutal clarity. Prevention is always cheaper than a courtroom education.

When criticism stays focused on performance, and not on leave, employers are on stronger footing. This decision shows how that plays out.

TL;DR: A senior account manager took eight and a half days of paid time off to care for a seriously ill daughter and then her mother. She later claimed the company interfered with and retaliated against her Family and Medical Leave Act (FMLA) rights. The Second Circuit affirmed summary judgment for the employer because performance issues were documented before the leave, every leave request was approved, and there was no proof that criticism or the termination decision was tied to her time off.

📄Read the decision

The setup: new accounts, more pressure, family health crises

The employee had been successful managing non-U.S. accounts. In 2020, she picked up several large U.S. accounts and struggled. Her supervisor documented problems with strategy, communication, and revenue pipeline in a mid-year review, but still rated her “fully successful” based on prior performance.

In October 2020, her daughter needed surgery for a serious condition. Her supervisor told her to take the time she needed. She took a total of seven and a half days of paid time off over the next few months to care for her daughter. In February 2021, she used one more day of paid time off to take her mother, who had macular degeneration, to a doctor’s appointment.

No one mentioned the FMLA. All of the time off was approved as PTO.

Meanwhile, some of her largest U.S. accounts, including a major pharmaceutical company, decided to stop doing business with the company for reasons that were not entirely in her control. But in the year-end review, she received an “improvement needed” rating. The supervisor again focused on pipeline and future revenue. According to the plaintiff, he also mentioned “lack of focus,” which she believed was about her caregiving. He said he meant focus on client relationships and strategy.

On February 24, 2021, the company terminated her. The explanation tied back to concerns that she would not meet 2021 targets.

She sued for FMLA interference and retaliation, plus a New York City Human Rights Law claim. The district court ruled for the employer, and the Second Circuit agreed.

What the court focused on

1. Interference: criticism about performance is not criticism about leave

The plaintiff said she felt discouraged from taking more time off because:

• her supervisor scrutinized her more closely,
• he raised the possibility that a major account would be reassigned, and
• he mentioned “lack of focus.”

The court called that subjective. There was no evidence that anyone tied those comments to her absences or her family’s health. Every leave request was granted, she was told to take the time she needed, and there were no negative remarks about taking time off.

Result: no interference based on discouragement.

2. Interference: notice failure without prejudice does not equal liability

The company did not send the formal FMLA eligibility and rights notices after learning about the daughter’s condition. That was not enough by itself.

The court looked at prejudice. She:

• took all the time off she requested,
• did not exhaust paid time off, and
• admitted in a message to a coworker that she should have taken family medical leave but did not want to let the company down.

Result: no evidence that the notice failure changed what she actually did, so no interference.

3. Retaliation: performance problems were already on the record

Even assuming her family-related PTO counted as exercising FMLA rights, the retaliation claim fell apart at the pretext stage.

The record showed:

• performance concerns about her U.S. accounts as early as July 2020,
• consistent focus on sales pipeline and future revenue in both mid-year and year-end reviews, and
• a termination explanation that matched those earlier concerns.

Her response was essentially that the performance assessment was unfair and that external factors caused some lost business. The court held that disagreement with a performance review is not enough to show pretext. The timing of her last one-day absence twelve days before termination did not overcome that history.

Result: no triable retaliation claim.

What employers and HR should take from this

1. Start documenting before leave is on the table.
   If an employee is struggling, get specific, contemporaneous performance notes into the file early. It mattered here that concerns were written down before any family-related time off.
2. Approve the leave and keep your comments separate.
   Managers should approve qualifying leave cleanly, avoid commentary about the burden of absences, and keep performance feedback focused on concrete business issues.
3. Give the FMLA notices anyway.
   This employer won despite a notice lapse, not because of it. When you learn an employee is caring for a family member with a serious health condition, trigger your FMLA process even if they are using PTO.

The bottom line

When performance problems are real, documented, and already in motion before an employee takes family-related time off, and when managers never link those issues to leave, courts are much more willing to grant summary judgment on FMLA interference and retaliation claims.

Most people assume FLSA retaliation claims start and end with the employer on the worker’s W-2. Not so. The Ninth Circuit just widened the blast radius.

TL;DR: The Ninth Circuit held that a worker who files an FLSA lawsuit against one business can pursue a retaliation claim against a partner and manager who also oversees a related business and cuts off work opportunities there because of the lawsuit, even if the worker has no employment relationship with the second business. The worker must still prove they were an employee of at least one business under the economic realities test. The case was sent back to determine whether that requirement is met.

📄Read the decision

The Fallout After a Wage Complaint

The worker performed several shifts each week for one business and also accepted occasional paid opportunities at another. Both businesses shared the same individual as a partner and manager.

Six days after the worker filed an FLSA lawsuit alleging misclassification and wage violations at the first business, that shared partner–manager emailed the worker to cancel the upcoming work at the second business. In the email, he explained that the cancellation was directly tied to the lawsuit and that allowing the worker to perform at the second business could expose it to similar claims.

The worker amended the lawsuit to add a retaliation claim based on the cancellation. The district court dismissed it because the worker was not an employee of the second business. The worker appealed.

The Ninth Circuit Expands the Lens on Retaliation

The Ninth Circuit reversed and clarified how far FLSA retaliation liability can reach.

1. Retaliation liability can extend to related businesses and shared decisionmakers

An FLSA retaliation defendant does not need to be the worker’s employer. It is enough that the retaliator acted “indirectly in the interest of” the employer the worker complained about. When a business shares an owner or manager with another entity, and that person cuts off work because of an FLSA complaint, that action can satisfy the statute.

2. The worker still must prove employee status with at least one business

The FLSA protects employees, not independent contractors. Even though the worker’s misclassification claims were time barred, they can still attempt to prove employee status under the economic realities test. The Ninth Circuit sent the case back so the district court can determine whether the worker was an employee of the primary business.

The employment relationship does not need to exist with the retaliator or the second business. It must exist somewhere.

3. Canceling work to “protect” another business from wage liability can be retaliation

The shared partner–manager argued that canceling the work opportunity was necessary to limit risk at the second business. The Ninth Circuit rejected that rationale. Actions taken because of a wage complaint cannot be justified as attempts to avoid litigation.

If cutting off work would discourage a reasonable worker from exercising rights under the FLSA, a jury can treat it as retaliation.

Why This Matters to Employers and HR

1. Shared leadership means shared retaliation risk

Any business with overlapping owners, managers, or supervisors must assume that a reaction in one part of the structure can create liability across the rest of it.

2. Workers can pursue retaliation even if wage claims are time barred

A worker who missed the window to recover wages can still pursue an FLSA retaliation claim if they prove they were an employee under the economic realities test.

3. Retaliation can happen through denied opportunities, not just termination

Examples include:

• canceling scheduled shifts at a sister business
• refusing to loan a worker to another location
• removing a worker from a cross-entity project
• blocking supplemental work normally offered
• excluding a worker from overflow or occasional opportunities

These can all support a retaliation claim when tied to a wage complaint.

4. “Protecting the business” is not a defense

The Ninth Circuit made clear that trying to avoid legal exposure is not an excuse for actions motivated by an FLSA complaint.

The Bottom Line

When workers file wage complaints, retaliation liability does not stay inside the four walls of one business. It can follow shared owners, managers, or supervisors anywhere in the organization. Employers with multi-entity structures should ensure that anyone with influence over work opportunities understands that reacting to wage complaints by cutting off work is a direct path to FLSA retaliation claims.

Some accommodation requests are straightforward. Others arrive wrapped in spiritual language but turn out to be personal views, broad objections, or political frustrations. A recent federal decision breaks down the elements courts look for in separating religious beliefs from non-religious objections.

TL;DR: A federal court just explained how to separate genuine religious beliefs from personal or political objections under the full name of Title VII of the Civil Rights Act of 1964. The employee described a religious conflict with the COVID-19 vaccination requirement, which the court treated as rooted in a faith-based practice. But his broad objection to the testing requirement was too political and too sweeping to qualify as religious.

📄Read the opinion

The Policy, The Objection, And The Road to Litigation

The employee in this case had worked fully remotely for years, aside from occasional in-person meetings. In late 2021, his employer adopted a policy requiring all employees to receive a COVID-19 vaccination as a condition of employment. Remote employees were included. The policy allowed employees to request religious exemptions, and the employee sought one.

In support of his request, he explained that he is an evangelical Christian who believes his body is a temple, that he avoids modern medical intervention, and that neither he nor his family receive any vaccines. He also submitted a letter from his pastor. The employer granted the exemption.

At that time, employees who received a religious exemption were not required to undergo diagnostic testing if they worked remotely. That changed in early 2022, when the employer extended its testing requirement to fully remote workers who had received COVID-19 vaccination exemptions.

The employee sought another accommodation. This time, instead of relying on his previously described religious practice, he objected more broadly, stating that God had instructed him to avoid the “covid agenda” entirely. The employer denied that second request. A month-long back and forth followed, during which the employee refused to comply with the testing requirement. The employer ultimately terminated his employment, and he sued.

The remaining question was whether his objections to each requirement were religious in nature or instead reflected political, philosophical, or personal views.

How Courts Separate Religious Beliefs From Everything Else

Before turning to each requirement, the court emphasized a foundational principle. Determining whether a belief is religious is a careful, fact-sensitive task. Courts do not evaluate the truth or plausibility of anyone’s beliefs. They do, however, assess whether an objection is actually rooted in religion or instead reflects political, philosophical, or personal views. Religious language alone does not transform a secular objection into a religious one. Title VII also does not give employees a blanket privilege to create their own standards whenever a workplace rule conflicts with their preferences.

Against that backdrop, the court evaluated each objection separately.

The Testing Requirement: A Political Objection, Not a Religious One

When the employer extended its testing requirement to remote workers, the employee’s new accommodation request shifted in tone. Rather than pointing to his faith-based aversion to medical intervention, he asserted that, after prayer and fasting, God directed him to avoid the “covid agenda” and not “com[e] into agreement with any aspect of it.”

The court concluded that this objection did not qualify as religious. It was:

• sweeping and undefined
• not tied to a faith-based practice
• framed in terms of political and moral disagreement
• open-ended in a way that would allow the employee to reject any requirement he associated with that agenda

As the court explained, “Courts have not accepted the proposition that Title VII protects what a plaintiff essentially asserts is a divinely granted right to pick and choose.”

Because the objection was not religious in nature, the testing-policy claims did not move forward.

The COVID-19 Vaccination Requirement: A Faith-Based Conflict

The employee’s objection to the COVID-19 vaccination requirement rested on a different foundation. He alleged that:

• he is an evangelical Christian
• he believes his body is a temple
• he avoids modern medical intervention
• he relies on prayer and natural remedies when God directs him
• he and his family receive no vaccines
• his pastor supported this belief in writing

These allegations described a specific faith-based approach to medical treatment. The employee tied his objection to a religious practice he says he follows consistently. The court accepted that this objection reflected a religious conflict with the vaccination requirement.

As a result, the vaccination-related claims proceeded.

Four Practical Lessons For Employers Reviewing Religious Accommodation Requests

Although this decision spent most of its time on whether each objection was religious in nature, employers should remember that their real-world focus should be on the accommodation process. Courts expect employers to avoid acting like theologians and to move into problem-solving once they are on notice of a conflict.

1. Start from the presumption that the belief is religious and sincerely held, unless you have objective evidence to question it.
Employers may ask clarifying questions, but they cannot evaluate whether a belief is correct, logical, or theologically sound. Only clear, tangible inconsistencies or evidence of non-religious motives justify probing sincerity.

2. Focus on the conflict between the employee’s belief and the specific requirement.
The key question is how the employee’s stated practice conflicts with the policy. As this case shows, different parts of the same policy may raise different issues.

3. Shift quickly into the accommodation discussion.
Once an employer understands the claimed conflict, the next step is exploring reasonable options. Courts expect employers to evaluate whether accommodation is possible before defaulting to denial.

4. Document the dialogue and your reasoning.
A well-documented process — what you asked, what the employee said, what options you considered, and why you landed where you did — carries far more weight than debating religious doctrine.

The Bottom Line

Courts are willing to draw the line between personal or political objections and actual religious conflicts. When a workplace requirement genuinely conflicts with an employee’s religious practice, employers must engage in the accommodation process. When an objection is broad, political, or untethered from any religious principle, it is far less likely to qualify for protection.