Legal Alerts Archive
In a unanimous decision, the California Supreme Court ruled late last week that plaintiffs in lawsuits brought pursuant to the California Private Attorneys General Act (PAGA) can seek the contact information for their fellow “aggrieved employees” at the outset of their lawsuit, without a showing of good cause for the potentially private information. As any employer who has faced a PAGA action knows, a list of contact information for all employees can be a treasure trove of information that should be protected from disclosure at all costs, so this decision could have serious repercussions.
- Supreme Judicial Court Ruling Requires Employers To Engage In Interactive Process7.18.17
The highest state court in the Commonwealth of Massachusetts issued a decision yesterday announcing that handicapped employees who have been prescribed medical marijuana may be entitled to a reasonable accommodation under the state’s handicap discrimination law, while requiring employers to engage in an interactive process to assist in making this determination. In Barbuto v. Advantage Sales & Marketing, LLC, the Supreme Judicial Court (SJC) reversed the dismissal of the employee’s handicap discrimination claim, finding that a “qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana” states an actionable claim of handicap discrimination under Massachusetts’s anti-discrimination law.
- New Document Could Be Liability Trap For Unsuspecting Employers7.17.17
It might seem like just yesterday that employers were told that they needed to use a new version of the Form I-9, the document verifying the identity of new hires to ensure they are authorized to work in the United States. Yet just eight months after the release of the most recent version, the United States Citizenship and Immigration Services (USCIS) has today released an updated Form I-9. Employers will need to adapt to the change and use the new form by no later than September 18, 2017 or face the possibility of large fines.
Good news for Missouri employers: the days of our state arguably being considered the most dangerous place in America for baseless discrimination lawsuits are about to end. Governor Eric Greitens late last week signed legislation that, effective August 28, 2017, amends the Missouri Human Rights Act (MHRA) and mostly aligns Missouri with federal antidiscrimination law and the laws of most other states. The result will be a level playing field for all parties to a discrimination claim. Employees still will be protected against employment discrimination, and employers will be better able to defend baseless lawsuits.
It’s hard to keep up with all the recent changes to labor and employment law. While it always seems to evolve at a rapid pace, the last few months have seen an unprecedented number of changes. June 2017 was no different, with so many significant developments taking place during the month that we were forced to expand our monthly summary beyond the typical “Top 10” list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 15 stories from last month that all employers need to know about.
Florida Governor Rick Scott signed a medical marijuana bill into law on Friday that provides guidelines on the implementation of the state’s Constitutional Amendment regarding medical marijuana. The good news for employers: the bill provides additional guidance on the amendment’s application in the workplace. The bad news for employers: the bill will almost certainly invite legal challenges and continue to cause uncertainty.
The U.S. Supreme Court announced today that portions of the controversial Executive Order No. 13780, “Protecting the Nation from Foreign Terrorist Entry Into the United States” (known informally as the “travel ban”), should no longer be blocked from taking effect and should instead be enforced by federal authorities. It issued a partial stay of the injunctions issued by the 4th and 9th Circuit Courts of Appeal that had blocked it from going into effect over the past month, and also announced that it would hear arguments on the case in the October 2017 Supreme Court term (Trump v. International Refugee Assistance Project).
It’s a news headline we’ve seen too often, including several times in recent weeks: another disgruntled employee or former employee has entered the workplace and killed or injured coworkers. What can you do to minimize the chances that your workplace will suffer such a tragedy?
- Is Your Website Susceptible To ADA Title III Challenges?6.16.17
A federal court in Florida issued a potentially groundbreaking decision earlier this week that could open the floodgates when it comes to a new trend in litigation filed under Title III of the Americans with Disabilities Act (ADA): the “surf-by” lawsuit. While businesses have been forced to deal with so-called drive-by lawsuits for some time now – those claims filed by plaintiffs who spot technical ADA violations such as inaccessible entrances by simply driving down the street – recent years have seen an explosion when it comes to the digital equivalent of such suits. Surf-by lawsuits, on the other hand, are initiated when someone simply logs onto your company’s website to search for possible accessibility violations, and if any are found, follows through by filing an ADA lawsuit against you, sometimes without prior warning.
Here’s some advice you probably didn’t think you needed, employers: you should avoid, at all costs, giving or threatening to give your employees the biblical Mark of the Beast. And if they think you are doing so, you should accommodate them if possible. An employer in West Virginia ignored this advice and will now have to write a $550,000 check to a former employee after the 4th Circuit Court of Appeals affirmed a whopping jury verdict earlier this week (EEOC v. Consol Energy).
- Manager’s Text Message During Union Campaign Deemed Unlawful Interrogation6.14.17
In what appears to be a first-of-its kind decision, the National Labor Relations Board recently determined that an employer committed an unfair labor practice when one of its managers asked a pointed question via text message to an employee about whether his loyalties lie with the company or with the union. While most employers know – or quickly learn – that they should avoid interrogating their employees about union matters, this decision demonstrates that the Labor Board could take a very broad approach when determining the contours of the law, and serves as an important lesson for management personnel dealing with a union drive (RHCG Safety Corp. and Construction & General Building Laborers, Local 79).
- Agency’s Application of 5th Circuit Appeals Court Precedent Will Benefit Employers6.14.17
The federal agency that reviews OSHA safety violation cases, also known as the OSH Review Commission, recently adopted the decision of one of its Administrative Law Judges who applied 5th Circuit precedent to reject a safety violation citation against a construction employer working in Texas. The June 1, 2017 decision is no doubt significant for the construction industry, as the Review Commission held that the Occupational Safety and Health Administration (OSHA) could not cite a general construction contractor for an alleged safety violation under the Occupational Safety and Health Act of 1970 (OSH Act) when the general contractor’s own employees were not exposed (Secretary of Labor v. Hensel Phelps Construction Co.)
- Rules On Transgender Discrimination And Criminal History Use Will Be Effective July 16.12.17
In recent months, the California Fair Employment and Housing Council (FEHC) has finalized two new sets of regulations that will both go into effect on July 1, 2017. California employers should pay close attention to these new rules touching on criminal history use and transgender discrimination; you may need to adjust your policies and practices for compliance in the very near future.
The Supreme Court unanimously held today that plaintiffs cannot immediately appeal a federal court’s denial of class certification when the named plaintiffs voluntarily dismiss their claims following the denial of class certification, handing a victory to employers and others who face costly class action litigation. This decision maintains the status quo, and continues to deny the plaintiffs’ bar the ability to do an end-run around the general prohibition barring provisional “interlocutory” appeals brought while the underlying litigation is still being maintained. While not an employment law decision, this ruling is welcome news for those employers facing class action lawsuits (Microsoft Corp. v. Baker).
The U.S. Court of Appeals for the District of Columbia rejected the chance yesterday to revive long-held precedent which for many years had protected employer witness statements from disclosure to unions before an arbitration hearing. The court instead ruled that the employer in the center of the battle did not have standing to challenge the National Labor Relations Board’s (NLRB’s) far-reaching 2015 decision in American Baptist Homes of the West dba Piedmont Gardens, snuffing out the current litigation and ending employer hopes of an ultimate victory.
- Dawn Of A New Day? Labor Department Withdraws Obama-Era Guidance On Misclassification, Joint Employment6.7.17
In a welcome development for employers, Secretary of Labor Alexander Acosta announced today that the U.S. Department of Labor (USDOL) was immediately withdrawing guidance published during the Obama administration that had hampered businesses when it comes to independent contractor misclassification and joint employment standards. While the guidance letters did not carry the force of law, they were relied upon by USDOL investigators and courts when examining allegations of wrongdoing, and were often cited by plaintiffs’ attorneys to support their demands.
In a unanimous 8-0 decision published today, the U.S. Supreme Court (SCOTUS) ruled that employee benefit plans sponsored by church-affiliated organizations will qualify for the “church plan” exemption under the Employee Retirement Income Security Act (ERISA) regardless of whether the plan was originally adopted or established by a church. This decision is a huge win for those church-affiliated employers such as hospitals and schools which have historically relied on the exemption from ERISA in the design and administration of their benefit programs (Advocate Health Care Network v. Stapleton).
Texas Governor Greg Abbott just signed into law a measure that will regulate ride-sharing companies (H.B. 100) by establishing a consistent statewide framework to govern such businesses. The good news for ride-sharing businesses: by following some very simple steps, you can avoid costly misclassification lawsuits by ensuring your workers are classified as independent contractors. The law was effective as of the date of signing – May 29 – and overruled all local ordinances in Texas that had previously regulated ride-sharing businesses.
It’s hard to keep up with all the recent changes to labor and employment law. While it always seems to evolve at a rapid pace, the last few months have seen an unprecedented number of changes. May 2017 was no different, with a flurry of significant developments taking place during the month. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 10 stories from last month that all employers need to know about.
- Retail and Fast Food Employers Soon Subject To “Fair Workweek” Laws6.1.17
New York City Mayor Bill de Blasio signed a suite of legislation dubbed the “Fair Workweek” bills into effect on May 30, 2017, which will limit the scheduling practices and flexibility of certain employers. These laws are aimed at giving retail and fast food employees more notice and predictability in their schedules, while compensating them with extra pay for last-minute schedule changes. They are scheduled to effect November 26, 2017.
What do employers need to know in order to come into compliance with the new laws?
- Supreme Court To Have Final Say In Upcoming Term5.31.17
Employers returning from the Memorial Day weekend were on the receiving end of bad news as they learned that the 6th Circuit Court of Appeals became the third federal appeals court to strike down mandatory class action waivers.
- Decision Sets Up Inevitable Date At Supreme Court5.26.17
In a 10-3 decision, the 4th Circuit Court of Appeals yesterday upheld the nationwide injunction that had blocked President Trump’s second executive order banning certain travel into the country from taking effect. The Court held that the text of the second executive order, also known as EO-2, “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
Can a worker bring a disability discrimination claim under New York City law based solely on a perception of untreated alcoholism? We’ll soon find out, as the U.S. Court of Appeals for the 2nd Circuit has certified the question to the New York Court of Appeals, the highest court in the state. The answer to this question will determine whether the courtroom doors will open for another class of employees and applicants, and could also impact employer-sponsored rehabilitation programs in the state.
- Mandatory E-Verify, Boosted Enforcement Among Priority Requests5.25.17
President Trump’s proposed budget released by the White House earlier this week contains no real surprises when it comes to the immigration provisions. The budget supports President Trump’s promises to increase immigration enforcement, build a physical wall on the nation’s southern border, limit refugees, and reform the immigration system. Further, the budget requests the funds to implement the items contained in the president’s immigration executive orders signed in January.
- Three Lessons to Be Learned From 1st Circuit Decision5.25.17
A federal appellate court recently ruled that an employee’s request for 12 months of additional medical leave was not reasonable, and thereby upheld the dismissal of her Americans with Disabilities Act (ADA) lawsuit against her former employer. Employers can learn three important lessons from the May 2, 2017 decision.
- President’s Proposed Budget Seeks 6 Weeks Of Paid Leave For All Families5.23.17
The White House released the details of President Trump’s proposed budget today, and if the president has his way, employees will be eligible to receive up to six weeks of paid parental leave by the year 2020. However, employers will not be on the hook to provide the compensation for this program. Instead, the administration proposes that paid parental leave would be “fully offset” by a package of reforms to the state unemployment insurance system. While specific legislation still needs to be developed and approved by Congress to install this program, this marks the first time that such a leave proposal has been advanced in a presidential budget.
- OFCCP Will See Budget Slashed, Merger With EEOC By End Of FY20185.23.17
The proposed federal budget released today would have a dramatic impact on the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), the watchdog agency overseeing the federal government’s affirmative action programs. Not only does the budget proposal call for the OFCCP to be subsumed into the Equal Employment Opportunity Commission (EEOC) by the end of FY 2018 (September 30, 2018), but it would significantly slash the agency’s budget and employee allotment leading up to that consolidation.
- Scheduled Implementation Date Of July 1 Is Now Off The Table5.18.17
Employers will be relieved, at least temporarily, of the requirement to file injury information through an electronic recordkeeping system that was scheduled to take effect this July 1. The Occupational Safety and Health Administration (OSHA), which had issued a rule requiring the posting of such information for most employers in May 2016, announced yesterday that the filing deadline will be postponed for an undetermined period of time.
Many workers in Georgia who receive sick leave from their employers will soon be entitled to use such leave to care for family members, thanks to a new law signed into effect by Governor Nathan Deal last week. The new law does not require Georgia employers to provide sick leave, rather it allows employees to use already earned sick leave for the care of immediate family members. Accordingly, it is not expected to add significant burdens to employers in the state.
In an unanimous decision, the California Supreme Court held today that California’s law requiring one day of rest in seven looks only at the employer’s defined workweek when determining the applicable period of time to be analyzed for compliance and liability purposes, and does not specifically require employers to provide one day of rest after six preceding calendar days of work. This decision is a big relief for those employers who schedule employees week-by-week without necessarily considering when the employees worked the previous week, outlining a clear and direct way that employers can comply with the state’s Labor Code.
President Trump signed an executive order on religious liberty yesterday to commemorate the National Day of Prayer. Like many before it, the exact contents of this order were hotly anticipated, fueled by White House leaks and presidential tweets, with many speculating that the order would greatly affect employment and other civil rights laws.
The House of Representatives took the first affirmative step towards repeal and replacement of the Affordable Care Act (ACA) today. After a failed attempt to pass legislation earlier this year, the House gathered the needed votes to pass the American Health Care Act (AHCA) by a narrow 217-213 margin this afternoon. However, given that this is only the first preliminary step in a longer process, and given that the AHCA would probably be substantially revised before final implementation, employers should take no immediate actions in response to this development.
It’s hard to keep up with all the recent changes to labor and employment law. While it always seems to evolve at a rapid pace, the last few months have seen an unprecedented number of changes. April 2017 was another month that saw an above-average number of dramatic developments, leading us to once again expand our summary even beyond a typical “top 10” list. In order to make sure that you stay on top of the latest developments, here is a quick review of the 13 biggest stories from last month that all employers need to know about.
- 5th Circuit Case Clarifies FLSA Exemption Standard For Offshore Workers5.3.17
A recent federal court decision may bring about a new wave of overtime claims by offshore workers, particularly those working within the territorial waters of Louisiana, Mississippi, and Texas (Halle v. Galliano Marine Service, LLC.) But does it mean a sea change in the way employers pay their workers?
New presidents are often judged based on their accomplishments in their first 100 days in office. President Trump is no exception to that rule. The Trump administration recently passed that milestone date, offering an opportunity for observers to assess how the initial stage of his presidency has gone. Just as we gathered our firm’s collective wisdom to offer predictions on what the Trump administration would mean for workplace law, we now tap back into the minds of the firm’s foremost thought leaders for a quick recap on how the first 100 days have treated the nation’s employers.
- Lewis v. Clarke And The Failed Expedition To Secure Tribal Rights: SCOTUS Rules Against Tribal Employee Immunity4.26.17
The U.S. Supreme Court unanimously ruled yesterday that tribal sovereign immunity does not apply to employees who are sued in their individual capacities, even if the alleged wrongdoing occurs while the employee is acting within the course and scope of employment by the tribe, and even when the tribe has agreed to indemnify the employee. Stated differently, the Court ruled that the doctrine of tribal sovereign immunity does not extend to tribal employees who are not being sued in their official capacity as agents of the tribe.
In a ruling that could leave employers fuming and possibly cursing, a federal appellate court ruled that an employee who used a public Facebook page to curse out not just his boss, but also his boss’s mother and entire family, should not have been fired from his job. Instead, the 2nd Circuit Court of Appeals decided late last week that the expletive-filled rant was protected by federal law because it was considered protected concerted activity (NLRB v. Pier Sixty, LLC).
The state of Florida is about to enact first-of-its-kind legislation that will ensure most ride-sharing drivers are independent contractors and not employees, eliminating costly misclassification battles and providing a massive boost to the gig economy. After passing the state legislature last week, Governor Rick Scott tweeted yesterday that he intends to sign the bill into law when he returns from a foreign trade trip. Once it takes effect on July 1, 2017, Florida will offer unmatched protections to sharing economy companies that do business in the state, hopefully spurring other states to follow its lead.
May Day has historically been a day marked by workers’ rights protests, with union organizing activities and other employee advocacy actions taking place across the country on what is now known as “International Workers’ Day.” Spurred on by recent “Day Without Immigrants,” “Day Without a Woman,” and “Tax Day” protests, however, this year’s version promises to be bigger than ever. Because your workers could take this opportunity to skip work or otherwise disrupt your operations, you should take the time to educate yourself about your legal obligations – and your rights – between now and next week.
Whenever the topic of sexual harassment reaches mainstream media outlets, people are bound to take notice. And when sexual harassment allegations involving a prominent public figure like Bill O’Reilly appear in the headlines of just about every major national and local media source, your employees are undoubtedly aware.
President Trump signed an executive order yesterday directing a full review of the H-1B visa program as part of a continued push to clamp down companies that hire foreign labor instead of American workers. The centerpiece of this directive – dubbed “Buy American, Hire American” – is a proposal to replace the H-1B lottery with a system that distributes visas on the basis of wages, skills, and education.
- Ruling In Favor Of Independent Contractor Status Provides Boost To Gig Economy4.13.17
A federal appeals court in New York handed a massive victory to a car service enterprise yesterday, ruling that a group of workers seeking to collect overtime payments were not actually employees and were properly characterized as independent contractors (Saleem v. Corporate Transportation Group, Ltd.). In issuing the ruling, the 2nd Circuit Court of Appeals provided what may superficially appear to provide a roadmap for technology businesses that digitally connect workers with consumers to understand, and avoid, misclassification risk.
The New York City Council passed legislation yesterday that will prohibit employers from making inquiries regarding salary history during the hiring process, a measure aimed at addressing gender-based wage gaps. Under the new law, it will be an unlawful discriminatory practice to ask about the salary history of a job applicant, or rely on the salary history of an applicant in determining compensation, during the hiring process.
- Groundbreaking Decision Could Lead Other Federal Courts To Follow Suit4.5.17
Late yesterday, the 7th Circuit Court of Appeals became the first federal court of appeals in the nation to rule that sexual orientation claims are actionable under Title VII. In a full panel en banc decision, the court opened the door for LGBT plaintiffs to use Title VII to seek relief for allegations of employment discrimination and retaliation.
Last week, North Carolina’s controversial “bathroom law” was repealed – but not without further controversy. When Governor Roy Cooper signed legislation repealing the law on March 29, 2017, many were upset that the law was repealed, while others were upset that the “repeal” did not go far enough.
It’s hard to keep up with all the recent changes to labor and employment law. While it always seems to evolve at a rapid pace, the last few months have seen an unprecedented number of changes. March 2017 was another month that saw an above-average number of dramatic developments, leading us to once again expand our summary even beyond a typical “top 10” list. In order to make sure that you stay on top of the latest developments, here is a quick review of the 15 biggest stories from last month that all employers need to know about.
In a 7 to 1 decision, the U.S. Supreme Court ruled today that courts of appeals should largely defer to lower courts’ decisions when policing subpoenas issued by the Equal Employment Opportunity Commission (EEOC). By requiring that lower court rulings should be reviewed for abuse of discretion, rather than under a de novo review standard, the Supreme Court’s decision keeps a more sensible, reasonable limit on the EEOC’s investigatory powers, including the scope of requests for information in administrative subpoenas.
We feel like a broken record, because we’ve said it before: the Affordable Care Act is still here. We said the same thing after each of two Supreme Court challenges to central portions of the law, both of which (in 2012 and 2015) fell flat. After campaigning on a promise to swiftly repeal the landmark healthcare law, and signing an executive order stating the new administration’s priority was to repeal and replace the Affordable Care Act (ACA), the president was unsuccessful in convincing Congress to begin dismantling the law. So, we can say it once again: the ACA survives another day, and employers need to continue to operate as if it will be here to stay.
- Obama Administration’s Fair Pay And Safe Workplaces Rule Falls Victim To Congressional Disapproval Resolution3.27.17
Today, President Trump signed his approval to a joint resolution passed by Congress disapproving of Executive Order 13673, better known as the “Fair Pay and Safe Workplaces” executive order, and more commonly referred to as the “blacklisting” rules (a term which includes regulations and guidance issued in conjunction therewith). President Trump’s signature sets ablaze yet another piece of the Obama administration’s legacy, permanently blocking rules which would have required federal contractors to disclose violations of numerous workplace laws when bidding for work with the government.
- IEPs Must Meet “Markedly More Demanding” Standard From Now On3.22.17
Today, in a unanimous decision crafted by Chief Justice John Roberts, the Supreme Court decided that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide a heightened level of educational benefits for children with disabilities. This new and heightened standard will impact the crafting of individualized education programs (IEPs) for those students.