Legal Alerts Archive
- Decision Provides Boost To Gig Economy Businesses9.9.16
The 9th Circuit Court of Appeals delivered a significant victory to Uber and other gig economy businesses by reversing a trial court’s denials of Uber’s motions to compel arbitration in companion class action lawsuits brought by former drivers in Massachusetts and California. The decision not only provides tremendous leverage to Uber as it continues to fight class action litigation over classification issues, but it also boosts gig employers in their efforts to require mandatory arbitration instead of costly courtroom battles.
In keeping with its goal of pioneering workers’ rights, Seattle’s City Council is expected to pass its Secure Scheduling Ordinance this fall, requiring certain retail and food establishments to provide both a “livable wage” and a “livable schedule” to their employees. While originally designed to imitate San Francisco’s secure scheduling law for large “formula” retailers, Seattle’s proposed ordinance will far surpass San Francisco’s in its employee and employer coverage, onerous requirements, and penalties.
- 2nd Circuit Refuses To Join Circuit Courts Siding With NLRB9.8.16
Employers can breathe a sigh of relief after the 2nd Circuit Court of Appeals once again upheld the validity of class and collective action waivers in arbitration agreements. Rather than siding with several recent circuit courts that struck down mandatory class and collective action waivers, the 2nd Circuit (covering New York, Connecticut, and Vermont) stuck to its guns and prior precedent to rule that employers can require employees to bring arbitration claims on an individual basis and prohibit them from joining together to bring class or collective actions (Patterson v. Raymour’s Furniture Co.).
- Employee’s Religious Discrimination Claim Falls Flat9.7.16
In our last edition of the Healthcare Update, we reported that the Equal Employment Opportunity Commission (EEOC) had filed a June 2016 lawsuit against that Baystate Medical Center in Massachusetts, claiming that the employer did not reasonably accommodate the sincerely held religious beliefs of an employee who refused to take a flu shot.
- Labor Regulation Banning Such Policies Upheld By 9th Circuit Court9.7.16
Restaurants and other hospitality businesses in the Western U.S. received bad news late yesterday as a federal appeals court refused to strike down a controversial tip-pooling regulation. The U.S. Department of Labor’s (USDOL) rule prohibits businesses from requiring employees to share their tips even if the tipped employees are paid minimum wage, and although a group of hospitality employers hoped that a court would reject the rule as running contrary to well-established law, the 9th Circuit Court of Appeals once again upheld the rule.
- Practical Tips For Handling Latest Mobile Device Craze9.6.16
There is something a little bit different about going back to school this year: your school is filled with Pokémon, awaiting capture by your students, employees, and visitors. By now, you are probably familiar with Pokémon Go, an augmented reality game that has gone viral since its July 2016 release. Players use their mobile device to capture, train, and battle Pokémon that virtually appear in real life locations.
The world of labor and employment law is always evolving at a rapid pace. In order to make sure that you stay on top of the latest developments, here is a quick review of the seven biggest stories from last month that all employers need to know about.
On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance on Retaliation and Related Issues. The document is a helpful tool for employers when navigating the often-treacherous retaliation road, and will be used by agency investigators, plaintiffs’ attorneys, and courts as a guidepost when examining employer actions. Here are 10 things you need to know about the guidance in order to stay up to speed.
- False Sexting Claims Prove Employer’s Downfall8.30.16
The federal appeals court in New York just adopted a broad standard for employer liability as a consequence of discriminatory acts by their employees. This standard opens the door to a significant increase in claims being filed by disgruntled workers. In an August 29 decision, the 2nd Circuit Court of Appeals joined several other federal courts and, for the first time, adopted the “cat’s paw” theory of liability in the context of a Title VII claim. This decision now puts employers on notice that they need to be extremely careful before acting on employee-generated evidence of wrongdoing when proceeding with disciplinary action (Vasquez v. Empress Ambulance Service, Inc.).
The final rule and guidance implementing the Fair Pay and Safe Workplaces Executive Order, signed by President Barack Obama in July 2014 and finally published on August 25, 2016, remain almost as burdensome and problematic as they were when originally proposed. They will impact many federal contractors and require immediate attention to ensure full compliance, which for some will be required as soon as October 2016.
- New Enforcement Initiative May Require Revisiting Current – And Former – Agreements8.25.16
The federal Securities and Exchange Commission (SEC) has issued six-figure fines to two different employers in the past several weeks, claiming that each crafted restrictive severance agreements that violated agency rules aimed at preventing companies from discouraging whistleblowing by current and former employees. By levying over $600,000 in fines in the span of two weeks, the SEC is sending a strong message to corporate America that severance agreements cannot unduly limit workers from reporting possible whistleblower tips. This surge in enforcement may require you to revise your current template settlement agreements to remove offending language, and might also encourage you to revisit past agreements and make retroactive amends.
- Schools Forced To Adjust On Cusp Of New Academic Year8.23.16
A federal judge in Texas has dealt a serious blow to the Obama administration’s transgender school bathroom directive, barring the federal order which required schools to allow transgender students to use bathrooms, locker rooms, and other facilities according to their gender identity. U.S. District Judge Reed O’Connor granted a preliminary injunction in an order published late Sunday, August 21, the night before most schools begin their school year in Texas. However, the ruling does not just apply in Texas; it prevents the administration from asserting its guidelines on school districts nationwide.
- Groundbreaking Ruling Changes Face Of University Employment8.23.16
In a game-changing decision reversing clear legal precedent, the National Labor Relations Board (NLRB) ruled by a 3-1 margin today that university students who work as teaching and research assistants at private universities are “statutory employees” under the National Labor Relations Act (NLRA) and can organize to form unions (Columbia University). The ruling applies to both graduate and undergraduate students who perform work, at the direction of the university, for which they are compensated. It will require private universities to immediately conform their practices to adjust to this new era of labor law.
- Employers Lose Latest Battle In National War8.22.16
Employers received their most bruising loss in the ongoing war involving class action waivers today, as the 9th Circuit Court of Appeals became the second federal circuit to strike them down as illegal. When the 7th Circuit issued an opinion earlier this year and became the first appeals court to make such a ruling, employers could view the decision as an anomaly and take comfort in the fact that all other courts reaching a decision had upheld class waivers. But today’s decision changes the national legal landscape (Morris v. Ernst & Young).
- Uncertain Times Ahead For Many Gig Employers8.19.16
In a surprising development, a federal court judge rejected a proposed settlement yesterday which would have seen gig giant Uber pay up to $100 million to resolve a series of legal claims challenging its classification model, characterizing the proposed settlement as “not fair, adequate, and reasonable.” While the shelved deal might end up actually helping Uber in the long run, the latest chapter in this long-running class action battle means that all gig companies will continue to live in a world of uncertainty when it comes to the thorny issue of misclassification.
- Further Advice On Hiring Permanent Strike Replacements8.18.16
An Ohio employer recently learned the hard way that employers need to be cautious when it comes to communicating with striking employees about permanent replacements. By mistakenly telling them that their employment had been “terminated,” the employer has been ordered to pay out a large sum of money to the striking workers, and – worse yet – hire them back. The lessons learned from this case can help you avoid the same fate (Tri-State Wholesale Building Supplies v. NLRB).
- Three Things You Should Know About Latest Court Decision8.17.16
A federal court recently upheld the validity of an employer’s class action waiver, forcing a disgruntled worker into arbitrating his case individually instead of using the court system to launch a large-scale class action. Typically, this kind of decision would not be particularly significant; after all, many businesses employ class waivers, and the overwhelming number of federal courts examining them have approved their use. But this case is noteworthy for two reasons: it was the first time a federal court published an opinion on class waivers since the 7th Circuit became the first court to reject them, and the decision boosts the burgeoning gig economy (Bekele v. Lyft, Inc.).
Employers returning from their summer vacations might have a rude awakening when they realize that new workplace posters are now required as of August 1, 2016. While you and your workers might have been busy hitting the beach or your favorite vacation spot, the U.S. Department of Labor (USDOL) was busy updating two mandatory posters and announcing that the revised versions need to be posted at once.
Travis Vance was featured on WBT NewsTalk 111AM on August 6, 2016. In the segment, Travis provides employers with seven tips to keep their employees safe from mosquito-transmitted Zika.
The world of labor and employment law is always evolving at a rapid pace. In order to make sure that you stay on top of the latest developments, this legal alert provides a quick review of the five biggest stories from last month that all employers need to know about.
- But Decision Provides Ample Warning To Employers8.2.16
A federal court of appeals recently announced that it had no choice but to deny an LGBT plaintiff’s request to proceed with a sexual orientation discrimination claim against her former employer because it concluded that such claims could not be brought under Title VII. However, the court went out of its way to note the many ways in which employers could still face cognizable claims from LGBT employees, and indicated that “perhaps the writing is on the wall” for Title VII to soon include a prohibition on sexual orientation discrimination. While this case counts as a “win” for the employer, it should stand as a warning for all employers to recognize that the legal landscape is rapidly changing.
On August 1, 2016, Massachusetts Governor Charlie Baker signed into law a comprehensive pay equity bill entitled The Act to Establish Pay Equity (the Act). This new law is part of a growing trend of state legislation aimed at the gender wage gap, with similar measures passing in California and New York in the past year. The Act will become effective on July 1, 2018, giving employers time to evaluate their pay practices and make necessary changes to comply with the law.
- Court Denies Safe Harbor Postponement Request IMMEDIATE ACTION REQUIRED!7.28.16
On Monday, July 25, 2016, the Fresno County Superior Court denied a request to postpone the deadline for qualified employers to notify the Department of Industrial Relations (DIR) of their election to participate in the affirmative defense, also known as the “safe harbor” provision, set forth in Labor Code §226.2. The request would have also extended the December 15, 2016 deadline to make back payments to current and former employees for rest and recovery periods and nonproductive time.
The New Jersey Supreme Court recently interpreted the state’s antidiscrimination law in an expansive manner, concluding that a broad spectrum of individuals can file suit and claim that their employers unfairly discriminated against them on the basis of their marital status. Not only will plaintiffs who believe they were targeted for mistreatment on the basis of their current marriage be able to find refuge under the law, but also will those engaged, separated, divorced, widowed, or even those who have never been married.
The US Department of Education (ED) recently released a significant Notice of Proposed Rulemaking which could impact most institutions of higher education. In a nutshell, the proposed regulations are designed to provide student borrowers with new ways to assert defenses to repaying student loans and, perhaps more significantly, to allow ED to seek reimbursement from schools for such claims brought by students.
On July 11, 2016, Governor Charlie Baker signed Massachusetts's transgender accommodations bill into law, which will allow transgender individuals to use restrooms, changing rooms, and locker rooms that match their gender identities rather than the biological sex assigned at their birth.
- Employers Now Face March 2018 Deadline For First Pay Report7.14.16
The Equal Employment Opportunity Commission (EEOC) announced revisions to its planned pay data rule yesterday, but unfortunately the revisions do not address the majority of concerns employers had about the original controversial version. While the updated rule makes minor concessions to employers and provides much-needed clarity on two issues, the revisions do not sufficiently address the undue burdens that employers will face in completing required reports, and all but ignore concerns about confidentiality and the underlying utility of the rule.
On Monday, July 11, the San Diego City Council certified the Minimum Wage and Sick Leave Ordinance passed by voters last month and also passed amendments to the Ordinance. We published a summary of the law when it was passed by the voters last month. Fortunately, the amendments address many of the questions left unanswered by the original bill. Unfortunately, some of the amendments also include increased penalties.
- Labor Board Continues Effort To Assist Organized Labor7.11.16
In today’s 3-1 decision, the National Labor Relations Board (NLRB) resurrected a union-friendly standard making it easier for unions to combine jointly employed temporary workers with an employer’s existing workforce to form a union. For over a decade, employers had enjoyed a standard which permitted them to block such a combined pairing by refusing to provide consent. As of today, however, that standard has been scrapped (Miller & Anderson, Inc.).
The City of Los Angeles Office of Wage Standards (OWS) recently issued regulations providing clarification to the Minimum Wage and Paid Sick Leave Ordinance that went into effect on July 1, 2016. Last month, Mayor Eric Garcetti signed the Ordinance into law leaving employers with only a few weeks to coordinate their compliance efforts. The OWS’ regulations appear to bridge the gap and provide employers with necessary guidance and clarity in light of the increasing uncertainty regarding three key areas in the Ordinance.
- Procrastinators Rejoice! Employers Handed Extra Time To File Safe Harbor Election Imposed By New Piece Rate Law7.7.16
Right before the holiday weekend, a Fresno County Superior Court judge handed California employers some good news by issuing a temporary restraining order in the case of Nisei Farmers League v. California Labor and Workforce Development Agency, et al. The court’s June 30 decision eliminates the July 1, 2016 deadline which had been in place for qualified employers to notify the Department of Industrial Relations (DIR) of their election to participate in the affirmative defense (also known as the “safe harbor” provision) set forth in Labor Code §226.2.
While most employers were preparing for the long holiday weekend, the U.S. Department of Labor (USDOL) announced a series of civil penalty increases that will impact the nation’s employers in the very near future. On June 30, the USDOL announced that the vast majority of penalties associated with wage and hour, safety, and benefits compliance matters will soon increase, as will certain penalties associated with immigration matters.
The world of labor and employment law is always evolving at a rapid pace. In order to make sure that you stay on top of the latest developments, we typically bring you a review of the five biggest stories from previous month. June 2016 was chock full of important stories, however, so we expanded the size of this article in order to accommodate all of the important changes.
Last week, employers began receiving notices from the Federal Health Insurance Marketplace / Exchange regarding employees who applied for Exchange coverage and were determined eligible for a tax subsidy to defray part of the cost. These notices offer employers a first line of defense against penalties under the Affordable Care Act's (ACA) employer mandate. If you receive a notice, you should act quickly to determine whether an appeal is appropriate.
On June 23, 2016, in a hotly contested referendum, British voters chose to leave the European Union in a contest dubbed “Brexit” (for “British exit”). It will take some time before the full implications of this decision become apparent to employers with operations in the UK.
Colorado Governor John Hickenlooper recently signed five bills into law that will soon impact employers in a number of different ways. Employers who do business in the state will face a new legal framework with respect to personnel files, classification of workers as employees or independent contractors for unemployment purposes, work status verification, and employment of workers with intellectual or developmental disabilities. Moreover, public employers will have additional challenges when it comes to employee whistleblowers.
- Agency Responds To Criticisms Lodged By Fisher Phillips, Others6.27.16
In a positive development for employers, the U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it would revisit its controversial proposed pay data collection rules, essentially acknowledging that its initial proposal would have been unduly burdensome for businesses.
Describing the federal government’s controversial persuader rule as “defective to its core,” the United States District Court for the Northern District of Texas today blocked the rule in its entirety. Had it not been stopped, then beginning on July 1, 2016, the new rule would have forced attorneys and their clients to report in open records the details of their confidential attorney-client relationships, making it complicated for employers to seek legal counsel in opposing and dealing with unions.
Today the U.S. Supreme Court held by a four to three vote that the University of Texas’s use of racial preferences in undergraduate admissions did not violate the Equal Protection Clause of the Fourteenth Amendment, upholding the University’s affirmative action program. The issue of affirmative action in higher education has now been considered five times by the Supreme Court and has produced some of the Court’s most fractious decisions, today’s being no exception. Fisher v. University of Texas.
In a 4-4 decision, the U.S. Supreme Court announced today that it could not reach a majority consensus on President Obama’s Executive Action on immigration. As a result, the Executive Action remains subject to an injunction blocking its implementation. The case will now return to Judge Hanen in Brownsville, Texas, to decide how to proceed with the case on the merits of the argument. While the case proceeds in the Federal Court in the Southern District of Texas, the undocumented workers, who would have benefited from the Executive Action, will not be able to seek protection from the threat of deportation and will remain ineligible for work authorization in the United States. United States v. Texas.
- July 1 Deadline Continues To Loom6.22.16
A federal court in Minnesota today sent employers a mixed message about the validity of the controversial new “persuader rule” – the impending regulation that would force attorneys and their clients to report in public records intimate details of their confidential attorney-client and financial relationships. As things stand, the rule will still be effective on July 1, but given the judge’s expressed doubts about the rule’s validity, employers can be all the more optimistic that it might soon be overturned.
In a 6 to 2 decision, the U.S. Supreme Court today continued the flip-flop-flip on determining whether an automobile dealership’s service advisors are exempt from the FLSA’s overtime requirements. The Court vacated and remanded the case back to the 9th Circuit Court of Appeals for further proceedings, essentially calling a “do over.” For dealerships in the 9th Circuit – those in California, Washington, Nevada, Arizona, Oregon, Alaska, Hawaii, Idaho, and Montana – this case provides a hopeful reprieve (Encino Motorcars, LLC v. Navarro et al).
A federal appeals court ruled that the NLRB’s “quickie election” rule is permissible and does not violate the law, meaning that employers will continue to have to live under the new and challenging regime that stacks the deck in unions’ favor. Although several business groups filed a lawsuit arguing that the rule should be stricken for a variety of reasons, the 5th Circuit Court of Appeals rejected the challenge and kept the rule intact. Employers would be best served to adjust to the new normal, as there do not appear to be any viable challenges to the rule on the horizon (Associated Builders and Contractors of Texas Inc. v. National Labor Relations Board).
- Supreme Court Hands Loss To Employers – But Is There A Hidden Silver Lining?6.16.16
The New Jersey Supreme Court just ruled that employers are not permitted to shorten the time frame that workers have to file a discrimination claim under the New Jersey Law Against Discrimination (NJLAD), reversing a 2014 appellate victory. The decision means that employers will want to revise their applications and other agreements to eliminate any offending language that otherwise shortens the two-year statute of limitations. However, employers may find some small measure of solace in the decision, as it may actually work to reduce the number of lawsuits filed against you (Rodriguez v. Raymours Furniture Co. Inc.).
- Contractors To Be Brought From ‘Mad Men’ To Modern Era6.15.16
Declaring that it is time to “bring these old guidelines from the 'Mad Men' era to the modern era,” the Office of Federal Contract Compliance Programs (OFCCP) just announced a final rule revising sex discrimination guidelines for federal contractors. It is the first substantive update to the rules since 1970, and will expand contractors’ obligations to ensure equal opportunity in employment based on gender. The effective date for the new rule is rapidly approaching – August 15, 2016 – so you will want to begin the process of ensuring compliance immediately.
- The Ever-Evolving Obligations of California Employers to Provide Paid Sick Leave (and New Minimum Wage Requirements, too!)6.9.16
This month, the Cities of Los Angeles and San Diego passed paid sick leave and minimum wage ordinances to go into effect soon. While all California employers have been required to provide paid sick leave to employees since July 1, 2015, these new local ordinances create an increasingly complicated web for compliance, particularly for employers with multiple locations.
It’s official – Ohio is the 26th state to legalize medical marijuana. Governor Kasich has signed House Bill 523, which becomes effective September 6, 2016. At that time, Ohioans can expect that residents with a qualifying medical diagnosis will exercise their right to travel to other states where marijuana is legal to purchase and travel back with it to Ohio for use consistent with the new law.
- NLRB Rejects Permanent Replacement Workers In Groundbreaking Ruling6.8.16
In an unprecedented 2-1 decision, the National Labor Relations Board recently held that a California continuing care facility violated the National Labor Relations Act by hiring permanent replacements during an economic strike to punish striking employees and to avoid future strikes. In so holding, the Board overturned decades of precedent allowing employers to hire permanent replacements during an economic strike, regardless of motive. This decision could have a significant impact on your labor relations strategy – unless you navigate through this area carefully, you could also run afoul of the new Board standard (American Baptist Homes of the West)
On April 20, 1999, a seed was planted in every workplace in this nation, one which has remained rather dormant for most of us until recently. That day, 13 people left their homes and entered Columbine High School – the aftermath is now at the doorsteps of every employer and cannot be ignored.
- “Self-Help Discovery” In Discrimination Cases May Be On The Way6.6.16
An important new Supreme Judicial Court decision has paved the way for Massachusetts employees pursuing certain discrimination claims to engage in what the court has dubbed “self-help discovery.” This new variant of “discovery” would permit employees, in certain circumstances, to lawfully take and disclose confidential employer documents before a lawsuit has even begun. This ruling emphasizes the importance of maintaining appropriate security for sensitive documents, including firewalls and other technological barriers.