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Avoiding Liability For Retaliation Claims: Issue Spotting In Real Time

Lonnie Giamela and John Mavros’ article “Avoiding Liability For Retaliation Claims: Issue Spotting In Real Time” was featured in the December issue of Hotel Executive.

Confidentiality Clauses in Settlement Agreements are Under Increasing Scrutiny by Regulators

In 2014 regulators increased their focus on the content of employee confidentiality, settlement and separation agreements. In particular, these regulators have expressed concern about clauses in agreements that may be construed as preventing an individual from cooperating or communicating with an investigatory agency.

Upcoming Supreme Court Decision Could Change the EEOC Litigation Landscape for Employers

A decision by the U.S. Supreme Court on whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s (EEOC) mandatory duty to conciliate discrimination claims before filing suit could significantly change the landscape of EEOC litigation for employers. The court will hear the case during its 2014–2015 term, and its decision has the potential to prevent federal courts from reviewing pre-suit conciliation efforts. This would, in effect, allow the EEOC to proceed unchecked with respect to conciliation. It could also result in less productive conciliation and increased litigation for employers. More importantly, such an outcome would deprive employers of any meaningful recourse in the event that the EEOC’s conciliation efforts are not made in good faith.

EEOC Lawsuit Against CVS Pharmacy Challenging Severance Agreements Dismissed

On October 7, 2014, District Judge John Darrah of the North District of Illinois dismissed the Equal Employment Opportunity Commission’s lawsuit against CVS Pharmacy. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., civil action no. 1:14-cv-00863, (N.D. Ill, October 7, 2014) (“10/7/2014 Memorandum and Order”). This lawsuit has been the subject of significant media attention due to the EEOC’s challenge to common provisions included in many standard severance agreements. While the decision is helpful for employers in that the EEOC did not prevail in this initial effort, the decision leaves many questions unanswered regarding the EEOC’s recent enforcement efforts and the appropriate employer response to the EEOC’s actions.

Court Dismisses EEOC’s Controversial Severance Agreement Lawsuit

As we reported in February 2014, the U.S. Equal Employment Opportunity Commission sued CVS Pharmacy in federal court in Chicago on a novel theory that the company’s standard separation agreement unlawfully deterred departing employees from later filing discrimination charges or participating in EEOC investigations. CVS’s severance agreement contained a common clause that required departing employees to agree they had not and would not sue the company. But the agreement also went on to state that it was not intended to prevent or interfere with an employee’s “right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws” and that the agreement will not “prohibit employees from cooperating with any such agency in its investigation.”

Federal Court Dismissal of EEOC Suit Leaves Employers Hanging

In a closely watched ruling, an Illinois federal district court handed a victory to one particular employer, but ducked a broader ruling that would have provided general guidance to companies generally that are trying to avoid litigation by entering into severance agreements with employees.

Fifth Circuit Reverses Summary Judgment in Favor of Franchisor Not Named in Charge of Discrimination

What do these famous words from Romeo and Juliet, downplaying the importance of names, have to do with discrimination litigation under Title VII of the Civil Rights Act of 1964? Despite Juliet’s musings, names play an important role for an employee who, in filing a charge of discrimination, must satisfy Title VII’s naming requirement. This is because an employee who fails to properly name defendants in a charge of discrimination provides the employer a defense to later litigation.

Fifth Circuit Finds Restriction of Job Responsibilities May Constitute Adverse Employment Action Under Title VII

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to fail to hire or to discharge an individual or otherwise discriminate against such individual “with respect to his [or her] compensation, terms, conditions, or privileges of employment” because of a protected characteristic, including race.

Back To The Drawing Board For Your Employee Separation Agreement?

In a move with potentially far-reaching implications, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against CVS Pharmacy, Inc....

THE EEOC STEPS UP CHALLENGES TO EMPLOYERS’ RELEASE AGREEMENTS

Employers’ motivation to obtain a release of claims may range from reducing the risk of litigation after a group layoff, to resolving a live dispute with a single employee. These goals generally are consistent with the strong public policy favoring settlement of disputes without litigation.