Every step you take…can your employer be watching you?

It sounds like something out of an Orwell novel: an employer demands an employee provide electronic notice of her whereabouts at all times, on and off the clock. The employee must now face a choice – protect her privacy outside of work, or lose her job. This is, however, a true story, and one without a happy ending for the employee.

Msecurity guard watching video monitoring surveillance security syrna Arias, a sales executive with the wire transfer company Intermex, was given a company phone and told to install the Xora app. This app performs several employment functions, such as providing a time clock, but it also includes a GPS component that provides data back to her employer at all times. She was told to always have the phone on her and powered on, which meant that the GPS function would report her information back to her employer. Arias complained to her supervisor that, while she didn’t mind the tracking taking place during work hours, she felt that it was an invasion of her privacy to keep tracking her away from work. She later uninstalled the Xora app to protect her privacy, and she was soon fired. On May 5th, 2015, Arias brought suit against her employer for invasion of privacy and unlawful retaliation, among other counts. There has not yet been any further activity of import in the case.

With the increasing ubiquity of GPS-equipped smartphones and apps such as Xora, employers may be tempted to use these tools to track employees. They can give employers a sense of what an employee is doing or how long a task is taking when the employee is offsite, and they can provide ways for employers to determine and improve employee efficiency. While there’s a new wrinkle when ‘bring-your-own-device’ policies might require employees to install apps such as Xora on their personal phones, the phone at issue in the Arias case was company property. The question then becomes whether employers can or should continue to track and receive information about an employee during that employee’s time off the clock.

Invasion of privacy aside, there is no federal law that currently prevents the type of tracking in the Arias case. The question of the propriety of monitoring non-employment employee activity prompts a further exploration for employers, however – could the data from this type of tracking expose that employer to liability under federal laws? For instance, if the employee visits a mosque in her off-hours, and later claims employment discrimination because of her religion, would the employer’s tracking of her movements provide the employer constructive or even actual notice of her religious faith absent other evidence? What if the employer visited a dialysis clinic, or a substance abuse treatment facility? There are a myriad of locations that an employee could visit in his or her off-hours that might provide the employer with more information than the employer should have. This information, in turn, could be viewed as constructive or even actual notice that the employee has a protected condition or is in a protected class, exposing the employer to liability should a discrimination case arise. Keeping tabs on an employee’s conduct away from work may seem desirable to some employers, but too much knowledge about an employee’s off-hours conduct might only hurt an employer in the long run. There is such thing as too much information.

For more information as the Arias v. Intermex case progresses, or for helpful hints on best practices for employers, contact the attorneys at McBrayer.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

What Employers Need to Know about Religious Discrimination after EEOC v. Abercrombie & Fitch

It’s rather fitting that the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores turns on the idea of one’s belief; it is, after all, a decision about religious discrimination under Title VII of the Civil Rights Act of 1964. The belief at issue, however, is not the belief of the claimant of religious discrimination, but rather the belief of the employer.

Discrimination Underlined With Red MarkerIn Abercrombie, an applicant for a position with an Abercrombie & Fitch store wore a hijab, a headscarf worn out of devotion to the Muslim faith, throughout her interview with the store’s assistant manager. Although the assistant manager determined that she was qualified for the position, the headscarf would be a violation of the store’s “Look Policy,” which prohibits head coverings of any kind. The assistant manager then sought the advice of the district manager, telling him that she believed the applicant wore the headscarf because of her religion. The district manager then suggested that any headwear, religious or not, would be a violation of the store’s policy and then directed the assistant manager not to hire the applicant. At no time did the applicant give the store employees any actual notice of the reason she wore the hijab, nor did she request any accommodation from the store policy to wear one if she were hired.

The crucial question of the case, then, was whether the potential employer needed actual knowledge of the employee’s religious reasons for the headscarf or if the manager’s belief that the hijab may have been part of a religious practice was enough to implicate Title VII. The Supreme Court agreed with the EEOC that actual knowledge was not required if the potential need for a religious accommodation was a motivating factor in the employer’s hiring decision. Because the employer was aware that there may be a need for an accommodation, it showed disparate treatment under Title VII to the applicant due to her religion. The court focused on the language of Title VII in 42 U. S. C. §2000e–2(m), which states that, “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice.” There is no knowledge requirement in the text, merely a prohibition on discriminatory motivating factors in employment decisions. It was significant for the court that some antidiscrimination laws such as the Americans with Disabilities Act do contain knowledge requirements, while Title VII clearly does not.

The Abercrombie case may be the strongest statement yet from the court on Title VII protections for religious discrimination. The import for employers is tremendous, in that an employer cannot merely claim ignorance of actual knowledge of the applicant or employee’s religion when the employer made an employment decision based on the employer’s belief that the person may need a religious accommodation. Employers should take caution when faced with potential religious accommodation issues, and they should evaluate potential trouble spots where otherwise neutral policies such as the appearance policy at issue in this case might conflict with the religious practices of applicants or employees. Simply put, a belief about another’s belief may be enough to rise to a claim of discrimination.

For more information on employment practices and policies and ways employers can accommodate religious practices, contact the attorneys at McBrayer.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

Morbid Obesity is Not a Disability in Kentucky – For Now

There’s no question that obesity is a national health crisis, with the Centers for Disease Control and Prevention estimating that more than a third of adults in the U.S. are obese. In 2013, the American Medical Association pronounced that it now finds obesity to be a disease, adding more fuel to the fire that suggests individuals afflicted with this disease could be considered “disabled” under the Americans with Disabilities Act (“ADA”). With regard to state law, however, the Kentucky Supreme Court closed the door – at least, for the time being – on disability claims with regard to obesity in the case of Pennington v. Wagner’s Pharmacy, Inc.[1]

Disabled. Single flat icon on white background. Vector illustration.

The Kentucky Civil Rights Act tracks the original text of the ADA closely, defining a disability as “(a) A physical or mental impairment that limits one or more of the major life activities of the individual; (b) A record of such an impairment; or (c) being regarded as having such an impairment.” KRS §344.010. The Kentucky law does not, however, track the language of the amendments to the ADA in 2008 (the Americans with Disabilities Amendments Act (“ADAA”), which expanded the definition of “major life activities” and “regarded as,” among other legally operative phrases. This difference might be crucial in future jurisprudence on the same topic.

In Pennington, a manager told the plaintiff’s supervisor to fire her because of her personal appearance. The plaintiff was morbidly obese and had been so for the duration of her employment. Pennington ultimately could not prove that her obesity was the result of a physiological cause, a prerequisite for a prima facie case of disability discrimination, according to the Kentucky Supreme Court. In other words, an obese person is not a disabled person in the court’s eyes under interpretations of the law in place at the time of Pennington’s firing.

Kentucky’s prohibition on obesity as a disability may not be as final as the Pennington holding suggests. Multiple federal courts have ruled that obesity might constitute a disability under the ADA as amended, and the court in Pennington alluded to the fact that the ADAA does not apply in the present case, as the relevant facts took place before the passage of the act. The court in Pennington noted that “the Kentucky Civil Rights Act was modeled after federal law, and our courts have interpreted the Kentucky Act consistently therewith.”[2] If this interpretation holds true, obese victims of discrimination in Kentucky may see a different result in the future than the one in the present case. The Kentucky Supreme Court stated in no less than three footnotes that the ADAA doesn’t apply in the present case, taking pains in at least one of these footnotes to note that the ADAA indicates a trend to treat morbid obesity as a disability. The court even cited as authority a case that had been explicitly superseded by the provisions of the ADAA. It appears as though the Kentucky Supreme Court, in an unpublished opinion, might have left a trail of breadcrumbs to follow for future interpretations of the Kentucky Civil Rights Act. Obesity as disability in Kentucky is down, but not out, and employers should be wary of adverse actions taken against employees on any basis that could be considered due to their obesity.

For assistance in understanding the holding in Pennington and what may or may not constitute disability under Kentucky’s Civil Rights Act, contact the attorneys at McBrayer.

Cindy EffingerCynthia L. Effinger, attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mmlk.com or (502) 327-5400.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

[1] Pennington v. Wagner’s Pharmacy, Inc., ___ S.W.3d ___, 2013-SC-000541-DG (Ky. 2015)

[2] Pennington at 5, quoting Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 591 (Ky. 2003)


How Serious is “Serious” under the FMLA?

The Family and Medical Leave Act (“FMLA”) provides protections for eligible employees who must take time off of work to deal with serious medical conditions. These protections, codified at 29 U.S.C. § 2612(a)(1), allow employees time away from work and prevent employers from taking adverse employment actions against the employee as a result of serious medical conditions. At issue, however, is the definition of “serious” – just how serious must a medical condition be to warrant FMLA protection? In the case of Dalton v. ManorCare, the Eight Circuit added yet another to a list of items that aren’t serious enough to trigger the protections of the statute.

Sick Woman Sleeping In BedroomIn Dalton, a nurse at a nursing home was terminated after she had received several warnings about poor performance. She also had been diagnosed with Stage One Chronic Kidney Disease (“CKD”), and these warnings about poor work performance came during her evaluation and treatment of this condition. Her repeated requests for FMLA leave were also denied, prompting her suit against ManorCare. Holding in favor the defendant ManorCare, the Eighth Circuit found that her CKD was not sufficiently serious enough of a health condition to warrant the protections of FMLA. For one thing, it was only Stage One, an early indicator of future problems, but something that can be corrected. For another, the plaintiff’s health conditions did not affect her job performance, and her employer granted every leave request she made for actual medical visits. Finally, the employee’s termination came from poor job performance, not excessive absenteeism due to medical treatment.

It is important for employers and employees alike to note that not only must an employee be eligible for FMLA leave, the health condition itself must also be sufficiently serious. 29 U.S.C. § 2612(a)(1)(D) protects employees from a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” Not every medical condition will qualify for FMLA under this definition, and, in fact, most will likely not. Serious health conditions require inpatient care or continuing treatment by a health provider, and the Department of Labor regulations at 29 C.F.R. § 825.115 suggest that continuing treatment of a serious health condition involves both treatment and incapacity. Short-term conditions such as a cold or the flu, minor ulcers and headaches don’t qualify, and other courts have found that chronic conditions such as depression don’t qualify, either. In Hurely v. Kent of Naples, an Eleventh Circuit case, the court held that not every leave that is medically beneficial for a chronic health condition such as depression qualifies for FMLA protection without a showing that the employee is somehow incapacitated or unable to work.

This determination of seriousness of a health condition protects employers against employees who may use any long-term health condition as a shield against adverse employment actions taken because of employee failures. Courts seem loath to extend FMLA protections too broadly as those protections are highly potent remedies designed to protect employees who are truly in need due to very serious conditions. The FMLA protects employees, but only insofar as their health conditions truly affect their ability to work.

If you need help with addressing FMLA issues or training employees on serious health conditions with regards to FMLA leave and protections, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Amy CubbageAmy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of state and federal law and does not constitute legal advice.

It Takes Two (Racial Slurs to Support a Claim of Harassment, That Is)

Before we begin the analysis of the recent Fourth Circuit opinion in Boyer-Liberto v. Fontainebleau, let’s take a moment to clear something up: When asking how many times an employee may permissibly hurl a racial slur at another employee, can we all agree that the answer is none? Employers, we beseech you – do not, under any circumstances, allow your employees to berate any other employees with racial slurs. It may not necessarily rise to actionable levels under Title VII, but it is just atrocious and unacceptable behavior (and, as the court in this case noted, it CAN rise to actionable levels under Title VII).

conceptual - a pawn expelled from group

Now that we have that cleared up, let’s discuss the holding in Boyer-Liberto, in which the Fourth Circuit, sitting en banc and reversing an earlier panel opinion, found that two racial slurs from a supervisor were sufficient to support a facial claim of racial discrimination and retaliation.

Ms. Boyer-Liberto, a Black woman, was a waitress at a hotel in Ocean City, Maryland. A restaurant manager twice called her a racial slur (a “porch monkey”) and threatened her with the loss of her job. The manager further referred to her as a “girl,” which on its face is not a racial slur, but becomes racially charged in this context. Boyer-Liberto reported the exchange to higher-ups at the hotel, but her complaint of racial harassment prompted the hotel owner to inquire about her job performance, after which she was sacked.

The Fourth Circuit, sitting en banc, held 12 to 3 that, even though the incidents with the racial epithets involved were isolated, the nature of the language made them extremely serious – serious enough to warrant a jury trial on whether racial discrimination took place. This overturned the decision of the district court, which found that no reasonable jury could find that racial discrimination had taken place – a fact that becomes important in the retaliation analysis.

From a purely legal perspective, the most interesting aspect of this case was the analysis of the plaintiff’s retaliation claim. In a retaliation claim under Title VII, a plaintiff must prove that he or she was involved in a protected activity, that the employer took an adverse employment action, and that there was a causal link between the two events. The protected activity in this case was the reporting of racial harassment to the superiors, the adverse employment action was the employee being fired, and the causal link between the two was that the hotel owner only looked into this employee’s record as a result of the complaint of racial harassment and thereby terminated her. While this seems simple enough, the district court and the original panel, upon determining that no reasonable jury could find that the racial slurs would constitute a hostile work environment, found that Boyer-Liberto could not reasonably believe that a Title VII violation had taken place, and therefore she was not protected from retaliation. The interpretation that an employee must have complained about an incident sufficient to create a hostile work environment to have possessed a reasonable belief that a Title VII violation was taking place came from an earlier Fourth Circuit case, Jordan v. Alternative Resources Corp. The Fourth Circuit explicitly overruled that holding here, finding that the fact that the employee reported an isolated incident of harassment, even if insufficient to show a hostile work environment, was enough to protect her from retaliation for making that report.

This holding is important to employers for a few reasons.

  • Employers should understand that employees should never be allowed to harass or intimidate fellow employees or those that they supervise. Employers should create strict codes of conduct concerning harassment, train employees on them, and enforce them consistently, as this holding shows even a few isolated incidents can give rise to claims of discrimination.
  • Employers (and others) should educate themselves about common racial slurs. In reading the reactions of both the employer and the original judges hearing Ms. Boyer-Liberto’s claims, it appears they did not fully appreciate the egregiousness of the slur. If you as an employer do not understand the seriousness of a slur, you cannot react appropriately.
  • Employers should maintain a clear and open channel for employees to report harassing incidents. One of the cruxes of the court’s opinion in Boyer-Liberto is that employees should feel safe and comfortable reporting unacceptable behavior in the workplace, not afraid for their continued employment for bringing bad actors and actions to light.
  • Finally – and we can’t bang this drum enough – employers should document everything, especially when receiving reports of unacceptable employee behavior or when taking adverse employment actions.

For assistance with creating workplace policies that protect employers and create healthy working environments, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Amy CubbageAmy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of state and federal law and does not constitute legal advice.

Complaining to the Boss? The Second Circuit Says That’s Protected

In 2011, the U.S. Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corporation that oral complaints are protected by anti-relation provisions of the Fair Labor Standards Act (“FLSA”), but it did not address a vital question: must those complaints be “filed” with a government agency to receive protection against retaliation, or will simple oral complaints to an employer trigger such provisions?[1] The Second Circuit recently moved to fill that gap, ruling in Greathouse v. JHS Security, Inc. that merely “filing” an oral complaint with an employer is enough to trigger anti-retaliation provisions of the FLSA[2].

The ruling in Kasten held that, for FLSA purposes, the language “filed any complaint” pertains to both written and oral complaints. The complaint must, however, be clear and detailed enough to be understood by a reasonable employer as an assertion of FLSA rights. The Supreme Court, however, omitted a key issue in that it did not mention whether an employee will be protected against retaliation if those complaints are made only to the employer, or whether the anti-retaliation provisions of the FLSA kick in only if an adverse employment action takes place after the filing of a complaint with a government agency.

Businessman sitting at desk holding pen with files

The Second Circuit addressed that issue, at least in New York, Connecticut and Vermont, by holding in Greathouse that yes, retaliation for oral complaints made only to the employer are prohibited by the FLSA. The facts are worth mentioning briefly, if only for their bizarre nature. The plaintiff Greathouse worked for a security firm, reporting to the firm’s president. After being the victim of significant improper employment practices, such as late or withheld payments, Greathouse confronted the president to question why he hadn’t been paid in several months. The president replied, “I’ll pay you when I feel like it,” and then immediately pulled a gun on him. At that point, Greathouse took that as a sign that he was no longer employed. The Second Circuit took that action as a sign of retaliation for raising concerns over wage issues and ruled in favor of the employee.

As the court in Greathouse noted, both the EEOC and the Department of Labor have consistently advanced the position struck by the Court in this case, that employee complaints over employment practices are protected from employer retaliation, whether lodged with an employer or a governmental agency. The message this sends to employers is that this interpretation of the FLSA is not likely to go away. Indeed, other circuits have explicitly accepted this rationale as well – the Second Circuit follows the First and the Ninth in doing so.[3] Employers should treat all employee concerns about wage and hour issues and employment practices with a high degree of seriousness, and such complaints in the work place (and any adverse employment actions taken with employees who make them) should be well-documented. Even the vaguest of complaints should be considered, and employers should always take adverse actions for non-retaliatory and truly legitimate reasons. It’s also probably a good idea not to draw guns on them.

The attorneys of McBrayer can help employers navigate through the sometimes murky waters of labor and employment laws, keeping them up to date on the latest developments and always steering clear of obstacles and pitfalls, so if your business needs guidance, don’t hesitate to contact us.

Luke WingfieldLuke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.


[1] Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011)

[2] Greathouse v. JHS Security Inc., No. 12-4521-cv (2nd Cir. April 20, 2015)

[3] Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41-42 (1st Cir. 1999); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir. 1999

For Equal Pay Act Comparison, “Equal” Can Mean “Greater Than”

The Equal Pay Act of 1963 (“EPA”) bars employers from discriminating in the payment of wages between employees on the basis of their gender. The employees of different genders must be performing equal work in jobs which require “equal skill, effort, and responsibility, and which are performed under similar working conditions.”[1] In an odd set of facts, the Tenth Circuit case of Riser v. QEP Energy hinged on an unusual definition of “equal.”[2]

In that case, Riser, a female employee overseeing fleet operations, facilities management and management of construction projects saw her job split nearly in half and given to two men at higher rates of pay, one of whom she trained in her duties until she was fired. Her eventual claim under the EPA failed at the district court, falling to summary judgment in favor of the employer, QEP Energy (“QEP”), because she failed, in the court’s eyes, to establish a prima facie case of discrimination. The Tenth Circuit revived this claim in Riser, dismantling the employer’s argument for how the jobs of the male comparators are not “equal.”

equal pay equal rights for man and woman on work marked fair payment opportunities with same salary

The crux of the QEP’s argument was that Riser performed substantial additional duties in addition to the same tasks as the male comparators, thus making her job unequal to theirs. The duties of fleet management were delegated to the employee she trained, while the duties of facilities management and construction oversight were given to another. Since the two male employees were performing those duties 100% of the time, but those duties only accounted for 33% or so of Riser’s total duties, they were not, according to QEP, doing equal work. The Tenth Circuit found this argument to be “especially disingenuous.”[3] QEP basically split Riser’s job in two, giving each half to a male, both of which were paid significantly higher salaries. In other words, it took one woman to do the job of two men, yet she still didn’t make the same amount of money as either one of them, let alone both of them. This was too much for the court, reviving her claim and holding, basically, that “equal” work can also mean that the claimant was performing the work of a comparator and then some.

The main holding of the case should put employers on notice that courts will look none-too-kindly on pretextual hiring policies that show great disparities in the salary treatment of different genders. Another key point for employers is that any internal salary classification system with classes that correspond with specific job duties should be applied and reviewed objectively. In the Riser case, Riser’s classification level did not correspond to her duties, and her classification did not change as duties were added. She twice asked for a review and salary increase based on the classification system, and twice QEP denied her request. It’s not enough to establish an ostensibly objective and gender-neutral pay classification system – it must be prudently applied as well.

For more information on an employer’s responsibilities under the Equal Pay Act or other antidiscrimination laws, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Luke WingfieldLuke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

[1] 29 U.S.C. 206(d)(1)

[2] Riser v. QEP Energy, No. 14-4025 (10th Cir. January 27, 2015)

[3] Ibid. at 12