The U.S. Equal Employment Opportunity Commission (EEOC) recently entered the Browning-Ferris saga, filing an amicus brief in support of the new joint employer test articulated by the National Labor Relations Board (NLRB) in August 2015.  Drawing comparisons to its own joint employer test, the EEOC urges the D.C. Court of Appeals to uphold the NLRB’s pliable, fact-specific test to determine whether an entity sufficiently controls the terms and conditions of an individual’s employment to be a joint employer.

Continue Reading EEOC Urges Federal Appellate Court to Uphold NLRB’s Expansive Definition of “Joint Employer”

Recently, the Massachusetts Commission Against Discrimination (MCAD) published guidance on gender identity discrimination, which the Massachusetts Fair Employment Practices Act (commonly known as “Chapter 151B”) has prohibited since July 1, 2012.  The guidance and statute, however, simply codify the position MCAD has taken since 2001.

Continue Reading Massachusetts Anti-Discrimination Agency Issues Guidance on Gender Identity Discrimination

In a previous post we discussed the Seventh Circuit’s decision in Hively v. Ivy Tech Community College, in which a three-judge panel concluded that Title VII did not protect an employee from discrimination based on her sexual orientation. The court recently granted the employee’s petition for en banc review and agreed to rehear argument in the case before all of the court’s judges.

The Hively decision was notable for the court’s struggle to follow precedent declining to extend Title VII to sexual orientation claims while acknowledging that district court cases and a recent EEOC ruling that rejected such precedent had actually demonstrated superior legal reasoning. Many observers believe it is only a matter of time until a federal appeals court extends Title VII’s protections to sexual orientation claims. We will be monitoring these developments and will keep you apprised of whether the Seventh Circuit takes the opportunity to become the first U.S. circuit court to do so.

My colleague, Jessica Catlow was quoted in the SHRM article, Is Banning Salary History Discussions a Game Changer? in which she analyzes a recent Massachusetts law that prohibits employers from asking job applicants about their salary history. Catlow highlights the law’s impact on the way women negotiate salary during the hiring process. The article provides an overview of the law and examines the likelihood of a nationwide ban on pre-hire salary questions.


As the workplace becomes increasingly digitized, both employers and employees can benefit from the conveniences technology provides.  Chief among those is the convenience of electronic access to funds, which allows people to bank, pay bills, and transfer money from a computer or mobile device rather than being constrained by the limitations of brick and mortar financial institutions.

In this vein, many employers have taken advantage of new technology that makes life easier for businesses and their employees.  In the realm of wages, electronic payment methods such as payroll debit cards and direct deposit would seem to make life easier.  However, beginning on March 7, 2017, New York employers who use these methods to pay wages must pay even closer attention when doing so.  That’s because last month the New York State Department of Labor issued Regulations imposing various additional written notice and consent requirements on employers who use methods other than cash or check to pay employees.  We summarize those requirements below.

Continue Reading New Rules for New York Employers Who Use Payroll Debit Cards and Direct Deposit

By Michael Arnold, Brent Douglas and Audrey Nguyen

Beginning next year, employers may no longer force their California employees to resolve their employment-related disputes outside of California or use non-California law when doing so.  With limited exceptions, the new law, codified at Labor Code Section 925, will be applicable to all employment agreements entered into, modified, or extended on or after January 1, 2017.  The new law is yet another attempt by California policymakers to provide added protections to employees working in their state.

Continue Reading Another Employee-Friendly Law: New California Law Aims to Keep Employment-Related Disputes Centered in California

Being connected to not just your friends, but their friends and their friends’ friends (it’s all six degrees of separation, right?) means that it’s become increasingly hard to stay anonymous when using an online dating platform.  Just ask one recent male user of OkCupid who made vulgar and inappropriate comments to a female user.  Her response?  Post the conversation and the man’s profile picture to her Facebook account.  He insulted her, she publicized him.  So far, there are no legal implications.

Her friend, an independent recruiter for tech startups, saw the post and recognized the man’s profile picture.  As it turns out, it was also his LinkedIn profile picture, and he had just applied for a position with one of her clients.  Her response?  Withdraw his application from consideration and tell him to treat women better online.  He insulted her friend, she withdrew his application for employment.  Here is where the criticism started.

The question: Can a recruiter reject a potential applicant based on inappropriate comments made on a dating site?

Continue Reading Inappropriate Social Media Activity Dooms Job Applicant’s Prospects

Institutional Shareholder Services Inc. (“ISS”), the influential proxy advisory firm, recently released their 2016-2017 Global Policy Survey results. These results show some interesting findings related to executive compensation and may signal the future of ISS policies concerning pay for performance and say-on-pay frequency.

Continue Reading ISS Survey Results Regarding Pay-for-Performance and Say-on-Pay Frequency

By Audrey Nguyen and Michael Arnold

California’s governor has signed into law a bill aimed at discouraging discriminatory age hiring practices in the entertainment industry.  The law focuses on internet websites identifying ages, but critics question whether the law is constitutional and if it will have any real impact.

Continue Reading New California Law Will Require Online Entertainment Database Sites to Remove Age-Based Information

My colleagues Bret Cohen, Michael Renaud and Nicholas Armington wrote an American Bar Association Business Law Today article entitled Explaining the Defend Trade Secrets Act, which provides an overview of the Defend Trade Secrets Act, including how it provides American companies with greater protection against trade secret misappropriation. The article examines key provisions of the act such as a uniform definition of “trade secret”, the new civil seizure mechanism as a preventive tool for trade-secret owners, and whistleblower immunity.