What HR Needs to Know

Even before the U.S. Supreme Court closed out its 2023 term and announced decisions in major cases on federal agencies’ and administrative law judges’ authority, 2024 had already provided a series of important employment-law decisions for employers. Attorney Louis Lessig, SHRM-SCP, a partner at Brown & Connery in New Jersey, highlighted several of these during his popular session at the SHRM Annual Conference & Expo 2024 in Chicago on June 26.

Here’s a summary of those cases and the lessons that employers should take away from each one: 

CASE 1: Employees Don’t Need to Show ‘Significant’ Harm for Title VII Claims

Muldrow v. City of St. Louis (U.S. Supreme Court, April 17, 2024): A plainclothes police officer was transferred to a less prestigious position that had the same pay but different hours and duties. She sued, claiming sex discrimination. A lower court tossed out the case, saying she didn’t suffer any significant harm to be able to bring the suit. But the U.S. Supreme Court disagreed, saying the worker “does not have to show … that the harm incurred was ‘significant’ or serious.”

The lesson: This important ruling eases the path for employees to bring Title VII claims. While workers must show they suffered “some” harm, that harm doesn’t need to be significant.

“That’s not a minor thing. That’s a really big deal,” said Lessig. “Because all of the things that [employers] have been getting out of on motions for summary judgment are probably not going to happen anymore or not as frequently. Because now there’s a question of ‘What is some harm?’ ”

CASE 2: Carefully Vet Your Vendor Agreements

Mobley v. Workday, Inc. (U.S. District Court for the Northern District of California, April 29, 2024): In an ongoing case, a job applicant alleged that Workday’s artificial intelligence-based hiring algorithms discriminated against him and other applicants. A key question is whether software vendors like Workday, rather than just employers, can be liable in such bias cases.

The lesson: Employers should ask vendors how their algorithms are created and what they are specifically doing in the background. Ask if the vendor holds routine audits and what happens if there are discriminatory outcomes. Employers may be on the hook if vendors discriminate.

“If you’re trying to see where AI is going from a legal perspective and from a recruitment perspective, this is the case to pay attention to,” said Lessig. “This is going to impact your contracts. If you’ve renewed lately, you’re probably finding that they’re changing the contracts as to liability and who is responsible for what.”

CASE 3: Apply Paperwork Requirements Consistently

Jones v. Georgia Ports Authority (11th Cir., Feb. 7, 2024): An employee with post-traumatic stress disorder was fired after submitting an unsigned return-to-work letter that was deemed insufficient by the employer. The court tossed out the employee’s Americans with Disabilities Act (ADA) lawsuit, finding no discriminatory motivation in the employer’s decision to fire for policy noncompliance.

The lesson: This case highlights the value of ensuring consistent practices of making employment decisions, particularly when it comes to documentation for return-to-work (in this case, requiring a doctor’s signature).

“You have to make sure that [your policies] are known by everybody, including that medical professional,” said Lessig. “You have policies for a reason. And you’ve got to make sure you follow them, because that’s how we stay out of having problems.”

CASE 4: When Responding to Employee Claims, Silence is Golden

Su v. Bevins & Son, Inc. (U.S. District Court for the District of Vermont, May 7, 2024): After an employee won a back-pay settlement, his employer retaliated by publicly criticizing the worker in social media posts, including encouraging people to examine the employee’s criminal background. The worker sued for retaliation and a district court sided with him, saying that free speech laws don’t give companies carte blanche to use social media to publicly shame employees who exercise their federal labor-law rights.

The lesson: Silence is golden when responding to employee legal complaints or legal victories. Make clear to your leadership to avoid any negative reactions to—or comments about—employees who file legal, safety, or labor-law complaints.

“The law under Title VII and the Fair Labor Standards Act is that if you do something that has a chilling effect on a future employee,” then you could be liable for retaliation, said Lessig.

CASE 5: FMLA Isn’t an Automatic No-Termination Zone

Cerda v. Blue Cube Operations LLC (5th Cir., March 19, 2024): An employee filed suit after she was fired for failing to accurately record her extended lunch breaks. She claimed the firing interfered with her leave under the Family and Medical Leave Act (FMLA) that she was using during the breaks. The court sided with the company, saying the worker didn’t follow company policy on giving correct notice of needing FMLA leave, so the firing was legal.

The lesson: Even when employees are taking FMLA leave, your company policies can still be upheld and employees can be disciplined for not following them. Also, Lessig noted that “there is no bright line” of wording that employees need to use when requesting FMLA leave. Workers satisfy that notice by providing sufficient information to reasonably alert the employer of a request for time off for a serious condition.

CASE 6: Clarify How You’ll Use Biometric Data

Deyerler v. HireVue, Inc. (U.S. District Court for the Northern District of Illinois, Feb. 26, 2024): The court ruled that a hiring software’s AI-powered facial screening technology may violate Illinois’ biometric privacy law. The court said HireVue’s collection and use of biometric identifiers was not in compliance.

The lesson: This case underscores the legal challenges employers face with AI video interview technologies and biometric privacy laws.

“This raises important issues on what is ethical AI,” said Lessig. “The truth is, if we’re going to be transparent on what we’re doing, then perhaps there has to be a disclaimer about how we may—not necessarily will—use that information.”

CASE 7: Train Managers to Spot ‘Unspoken’ Accommodation Requests

Yanick v. The Kroger Co. (6th Cir., April 29, 2024): A bakery worker returned after breast-cancer leave with her doctor’s OK to return to full duty. But she struggled with certain tasks and was demoted. She filed an ADA lawsuit, and the court sided with her, saying the employer should have inferred that her comments about her physical struggles amounted to a request for an ADA accommodation.

The lesson: As with the FMLA, employees don’t need to say any magic words to request an ADA accommodation. Make sure your managers know what may qualify and to elevate those subtle requests for accommodations up to HR.

“She was telling them she had some challenges. She doesn’t need to say the word ‘accommodation,’ ” said Lessig.

CASE 8: Don’t Take Shortcuts in Your Drug Testing

Fisher v. Airgas USA, Inc. (6th Cir., Jan. 31, 2024): An employee out on cancer leave used a product called “Free Hemp” for relief of treatment pain. The hemp was not prohibited under company policy. However, when he was chosen for a random drug test and failed, he was fired. He sued and won. The court said the company could not rely on the “honest belief” doctrine without adequately investigating that his use of the hemp could have caused a false positive.

The lesson: The company should have consulted with its drug-testing provider about the potential impact of hemp use on the test results before firing the employee.

“When you’re doing this testing—whether it’s random or otherwise—you’ve got to take the time to figure this stuff out,” said Lessig. “If an employee tells you something, you’ve got to communicate that [to the drug testing company].”