Nadine Roddy—Senior Attorney

     In a matter of first impression, the Colorado Supreme Court has recognized a self-defense public policy exception to the at-will employment doctrine. Moreno v. Circle K Stores, Inc., 591 P.3d 46 (Colo. 2026).

    The plaintiff in Moreno was a 72-year-old woman who had been working at her employer’s convenience store. A customer approached the register holding several items, including two hunting knives. He placed the knives on the counter and told her to get him a pack of cigarettes. The employee retrieved a pack from the display case behind her and began to ring up the sale. The customer said something to the effect of, “[J]ust give them to me for free.” When the employee refused, the customer picked up the knives and walked around the counter toward the employee, cornering her. She twice told the customer, “[D]on't come back here.” Undeterred, and with knives in hand, he continued to approach; Moreno then extended her arms to protect herself. The customer then grabbed the pack of cigarettes and ran out of the store. He was subsequently arrested, and ultimately pleaded guilty to menacing with a deadly weapon.

Nadine Roddy—Senior Attorney

       The 401(k) plan is perhaps the most popular form of tax-advantaged savings and investment vehicle for retirement offered by American employers under the Employee Retirement Income Security Act of 1974 (ERISA). Many plans contain provisions requiring arbitration of all disputes arising from the plan, and some of these provisions limit the rights and remedies of plan participants bringing suits in arbitration. The Sixth Circuit recently declared invalid a 401(k) plan’s “individual arbitration provision” requiring a plan participant to bring suit in arbitration only in their individual capacity, and not in a representative, class, or collective capacity. The provision also limited a participant to seeking remedies for losses to their individual plan account, rather than to the plan itself. The case involved two plan participants who filed in federal district court a putative class action against plan fiduciaries on behalf of the plan, themselves, and all others similarly situated. They claimed breach of fiduciary duties and sought all losses accruing to the plan, disgorgement of all profits, and other injunctive relief. Parker v. Tenneco, Inc., 114 F.4th 786, 792 (6th Cir. 2024).

Nadine Roddy—Senior Attorney    

      May an employer ask an employee whether they are thinking about retiring sometime in the foreseeable future without running afoul of the Age Discrimination in Employment Act (ADEA)? Some federal courts of appeals have answered this question in the affirmative.    

      In a recent Fourth Circuit case, Palmer v. Liberty University, Inc., Nos. 21-2390, 21-2434, 2023 U.S. App. LEXIS 18467 (4th Cir. June 30, 2023), a 79-year-old professor was notified by the university where she had taught studio art for over 30 years that her annual contract would not be renewed. Nearly all of the university’s faculty members were employed on an annual basis and served without tenure. Before informing the professor of the nonrenewal of her contract, the Dean and the Provost had privately decided to offer the option of retirement to the professor, but only if she brought up the subject herself. After receiving the nonrenewal notice, the professor “responded unfavorably” but she did not raise the issue of retirement. As a result, she was not offered that option, and she lost her employment upon the expiration of her contract. In the ensuing ADEA lawsuit, the district court entered summary judgment for the university.

Nadine Roddy—Senior Attorney, National Legal Research Group

       Over the last two decades, over two-thirds of the states have enacted legislation authorizing the use of marijuana and marijuana products for medical purposes by persons with debilitating conditions. See, e.g., Va. Code Ann. § 18.2-251.1. At present, over one-third of the states have also decriminalized possession of small amounts of marijuana and marijuana products for recreational (“adult”) use by persons 21 years of age and older. See, e.g., Conn. Gen. Stat. § 21a-279a. Unsurprisingly, such laws have created difficulties for employers wishing to prevent their employees from bringing marijuana into the workplace and/or performing work while under its influence. Employers’ drug-use policies have been challenged in the courts by aggrieved employees on the basis of such laws, with mixed results.

       Recently, the Nevada Supreme Court, sitting en banc, decided the case of Ceballos v. NP Palace, LLC, 514 P.3d 1074 (Nev. 2022), involving the state’s off-duty conduct statute, which creates a private right of action in favor of an employee who is discharged for engaging in “the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours[.]” Nev. Rev. Stat. § 613.333(1)(b). The question presented was whether “adult recreational marijuana use” qualified for protection under this statute.

Suzanne L. Bailey—Senior Attorney, National Legal Research Group

            The COVID-19 pandemic has been a fertile source of new litigation: challenges to mask mandates, challenges to vaccine mandates, construction of child custody visitation agreements in light of COVID-19, assertion of the defense of impossibility in response to attempted enforcement of a contract, etc. Recently, a federal district court in Virginia addressed whether an individual stated a cause of action against his employer for firing him after the employer denied the individual’s request to quarantine at home in order to avoid exposing his adult paraplegic brother to the coronavirus. The court in Crawford v. Creative Cost Control Corp., Case No. 7:21-CV-00419, 2021 WL 5049768, 2021 Wage & Hour Cas.2d (BNA) (W.D. Va. Nov. 1, 2021), held that plaintiff Christian Crawford (“Christian”) stated claims for (1) interfering with rights provided under the Family and Medical Leave Act (“FMLA”), and (2) retaliation or discrimination in violation of the FMLA. However, he did not state a claim under the Families First Coronavirus Response Act (“FFCRA”).

Nadine Roddy—Senior Attorney, National Legal Research Group

            Recently, a federal district court sitting in New York held that an employee’s prior release of a claim for compensatory damages for unlawful employment discrimination did not preclude his claim under Title VII for punitive damages arising out of the same conduct. Barker v. Aramark Unif. & Career Apparel, LLC, No. 19-CV-2710, 2021 WL 4859741 (E.D.N.Y. Oct. 18, 2021). The employee in the case filed a charge of race discrimination against his former employer with the State Division of Human Rights. The parties entered into a Settlement Agreement by which the employee “waive[d] and release[d] any and all claims and allegations asserted in” the Division proceeding “arising from or relating to any and all acts, events and omissions alleged or that could have been alleged[.]” Subsequently, the employee brought a Title VII suit in federal court, seeking punitive damages—a remedy not available in the state agency proceeding.

Nadine Roddy—Senior Attorney, National Legal Research Group

            One of the more difficult issues in the employment discrimination context has been the determination of whether an employee who is charged with misconduct toward another employee is a "supervisor" or a "coworker" for purposes of employer liability under Title VII and related statutes. Initially, the Equal Employment Opportunity Commission ("EEOC") took the position that an individual is qualified as an employee's supervisor if (1) the individual had authority to undertake or recommend tangible employment decisions affecting the employee, or (2) the individual had authority to direct the employee's daily work activities. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (1999. In its 2013 decision in Vance v. Ball State University, 133 S. Ct. 2434 (2013), however, the Supreme Court narrowed the definition, holding that an employee is a "supervisor" only when empowered by the employer to take tangible employment action—such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, or causing a significant change in benefits—against the employee alleging discrimination. Since then, the lower federal courts have refined this definition in relevant cases.

Nadine Roddy—Senior Attorney, National Legal Research Group

            In a closely watched case, California v. Texas, 141 S. Ct. 2104 (2021), the Supreme Court recently turned back a third challenge to the federal Patient Protection and Affordable Care Act ("ACA" or "Act")—the extensive health-care reform law enacted in 2010 that includes, among other things, a requirement for all individuals (known as the "individual mandate") to obtain a minimum level of health insurance coverage (known as "minimum essential coverage" or "MEC") or to pay a tax penalty to the Internal Revenue Service ("IRS"). In subsequent legislation, Congress reduced the penalty from $695 to $0. At that point, the State of Texas, joined by several other states and two individual plaintiffs, filed a challenge to the amended Act in a federal district court sitting in Texas. The court held that Congress's effective elimination of the tax penalty had rendered unconstitutional the individual mandate to obtain MEC, as it could no longer be justified as a tax. Further, because the unconstitutional provision could not be severed from the rest of the ACA, the entire Act was invalid. In its June 2021 decision, the Supreme Court did not reach these substantive issues, instead ruling 7-2 that neither the states nor the individual plaintiffs had Article III standing to bring the suit, as none had shown a past or future injury "fairly traceable" to the officials' conduct.

Nadine Roddy—Senior Attorney, National Legal Research Group

            An exotic dancer was an "employee" of an adult entertainment club under the Fair Labor Standards Act ("FLSA"), even though a written agreement disclaimed an employment relationship, a federal district court sitting in Florida recently held in Schofield v. Gold Club Tampa, Inc., No. 8:19-CV-3097-VMC-TGW, 2021 WL 533540 (M.D. Fla. Feb. 12, 2021). The summary judgment evidence showed that the economic reality of the relationship was one of employer and employee given the degree of control over the dancer's work exercised by the club, among other factors.

            An exotic dancer who worked at an adult entertainment club brought suit against the club owner and its operator ("club"), seeking a ruling that she had been misclassified as an independent contractor, that she was the club's employee, and that she was thus entitled to employee's protections under the FLSA. The evidence showed that the club's DJ used a list of dancers present at the club on a given shift to set up a rotation for performances on the stage. Each dancer would perform for about two and a half minutes to music she had preselected. In addition to watching dancers on the stage, club patrons could purchase a lap dance in an open booth and/or time with a dancer in a private "VIP room." An employee called a "VIP host" would schedule such activities and collect the money before any activity took place.

Nadine Roddy—Senior Attorney, National Legal Research Group

            An employer that discharges an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964, the Supreme Court held 6-3 in one of the last decisions of its October 2019 term. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). Title VII contains the well-known prohibition of discrimination in employment against an individual “because of” the individual's “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Writing for the majority, Justice Gorsuch explained that an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Thus, sex plays a “necessary and undisguisable role” in such decisions—precisely what Title VII forbids.

            Three cases were consolidated for this appeal. Each one started with an employer discharging a long-term employee soon after the employee revealed that he was homosexual or gender-transitioning—and allegedly for no other reason.