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Total Articles: 5

Employee’s "Alternative Facts" Can’t Overcome Summary Judgment for Employer

As the week begins with new lexicon coming out of our nation’s capital, a recent federal court of appeals ruling reminds us that, in most situations, it’s the employer’s assessment of the facts, not the employee’s “alternative facts,” that matter when deciding the appropriate punishment for employee performance or misconduct issues. And, perhaps more importantly, the ruling reminds us that the mere fact an employee has a disability, or has requested or taken FMLA leave, does not act as a “get out of jail” card for such performance or misconduct issues.

Federal Appellate Court Throws Out EEOC Discrimination Complaint After Expert Accused of "Cherry-Picking" Data

Last week, the Federal Court of Appeals for the Fourth Circuit upheld a district court's decision granting summary judgment to an employer accused by the Equal Employment Opportunity Commission (EEOC) of racial bias in its use of criminal background and credit history checks during the employment application process. The Court found that because the EEOC had relied on expert witness reports with "an alarming number of errors" to prove the background checks had a disparate impact on black and male applicants, the district court properly ruled in favor of the employer. The decision and blistering concurring opinion may give the EEOC pause before it brings claims against employers in the future based on unreliable statistical analysis.

eLABORate: EEOC Blasted for Reliance on "Slipshod" Work of "Expert" Witness in Background Check Lawsuit

The Equal Employment Opportunity Commission ("EEOC") last week suffered a major defeat in its aggressive litigation offensive against employers using criminal and credit background checks. In an excoriating opinion affirming a lower court decision in EEOC v. Freeman, the United States Court of Appeals for the Fourth Circuit held that the expert witness on which the EEOC entirely bases its theory of liability conducted "slipshod work" and is "utterly unreliable".

Think Before You Delete or Pay the Price

Preservation of evidence is the golden rule in litigation. Most lawyers are aware of the importance of this rule and should be quick to remind their clients that once there is any possible threat or anticipation of litigation, any and all documents should be preserved, including those stored electronically. While judges in different jurisdictions may vary on the type or amount of sanctions for the failure to preserve, the reality is clear.

Court Sanctions Employer $25K for Failing to Preserve Email After Notice of EEOC Charge

In Knickerbocker v. Corinthian Colleges, a trial court in Washington state sanctioned an employer because it failed to preserve evidence and issued an insufficient litigation hold after the employer received notice of EEOC charges filed by three former employees. The decision provides a tough lesson for employers and counsel alike on the importance of a properly issued litigation hold.