The Second Circuit said last week that an employer violated the National Labor Relations Act when it fired an employee who criticized a supervisor on Facebook during an election. The catch here is that the Second Circuit reached this conclusion even though the employee used profanity and hurled personal insults at the supervisor as part of his criticism. As we discussed in a post at the time of the NLRB’s initial determination, while the employee’s conduct pushed the boundaries of protected concerted activity under the NLRA, the fact that the post contained an express pro-union message and occurred in the heat of a campaign contributed to the finding that the termination was unlawful.
Earlier this month, the Supreme Court confirmed that federal appeals courts should apply a deferential standard of review to federal district court determinations regarding the legal sufficiency of EEOC subpoenas.
As we observed in a recent post on the Seventh Circuit’s decision in Hively v. Ivy Tech Community College extending Title VII to sexual orientation claims, the Supreme Court will probably have to resolve the disagreement among the federal circuit courts over whether the statutory language “because of…sex” should be interpreted to include “because of…sexual orientation.” And sure enough, on the heels of one Second Circuit panel decision late last month that refused to extend Title VII to cover sexual orientation, a different panel of that court again declined last week to reverse its own precedent, finding that Title VII’s prohibition against sex discrimination does not extend to discrimination against lesbian, gay, and bisexual employees based purely on their sexual orientation.
We had such a spirited panel discussion on pay equity at our Third Annual Employment Law Summit recently that we wanted to follow up with a post addressing the current state of play on pay equity legislation, particularly with respect to salary history disclosure laws. This is a rapidly advancing area of the law in which we continue to see new developments.
Our colleagues at the ADR blog have published the first of a series of posts discussing the dilemmas inherent in attempting to resolve class claims through arbitration. In Is ‘Class Arbitration’ an Oxymoron? Mintz Member Gil Samberg considers the challenges of adjudicating class claims, which are based on the rules of civil procedure, through the purely contractual mechanism of commercial arbitration, and notes that the Supreme Court has yet to definitively approve of this approach. For an insightful look at the current state of the law as well as the broader implications of class arbitrations, you can find the post here.
In a landmark en banc decision rejecting its earlier panel ruling, the U.S. Court of Appeals for the Seventh Circuit became the first federal appellate court to hold that Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of sexual orientation. While the employer in the case, Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. April 4, 2017), has indicated that it does not intend to appeal the Seventh Circuit’s ruling, the conflict between the court’s holding and recent Second and Eleventh Circuit decisions makes it likely that this issue will reach the Supreme Court in the near future.
As we discussed yesterday at Mintz Levin’s Third Annual Employment Law Summit, big changes are likely in the offing as all three branches of our federal government begin to deal with labor and employment issues following President Trump’s election. President Trump’s first 100 days has already included action on a number of employment and labor law issues we’re following here at Mintz Levin. The Administration has enacted or signaled changes – some potentially significant – in executive orders and through pronouncements of regulatory and enforcement priorities that promise to impact the field of labor and employment law. Additionally, the expected confirmation this week of Judge Neil Gorsuch means all hands on deck at the United States Supreme Court, and congressional action so far suggests a potentially employer-friendly climate on Capitol Hill.
Below, we highlight changes in the leadership, regulation, and likely course forward for each of the branches of the federal government, and offer our predictions for 2017 and beyond under the current Administration. Continue Reading Steady as She Goes or Charting a New Course? Employment and Labor Signals in the Trump Administration
In a recent case, a Maryland Federal court permitted a plaintiff to proceed to trial on her failure to accommodate claim under Maryland’s Fair Employment Practices Act (MFEPA), finding that under Maryland law the employer was required to perform an individualized assessment in order to determine whether the employee – a qualified individual with a disability – was able to perform the essential functions of any available job, not just the job in which she had worked. Continue Reading Federal Court: Maryland Fair Employment Practices Act Requires Employer to Consider Jobs Other than Employee’s Current Job When Assessing Possibility of Reasonable Accommodation
It’s been a terrific run. A real Cinderella story. Who would have thought that a little blog out of the northeast region could make so much noise in the thought leadership world?! We learned a lot along the way and we hope you did too. While we celebrate by cutting down the (inter)net (or better yet, by removing the keys from our keyboard), here’s a quick recap of where we’ve been:
The basketball court isn’t the only place you’ll see interesting uniforms this month. Many employers choose to implement and enforce their own uniform requirements and dress codes at work. But if done incorrectly, uniforms or dress codes may reinforce stereotypical gender roles and put transgender employees and applicants in a very uncomfortable place. In addition, some religious people in the workplace require exceptions to uniform requirements and dress codes in order to adhere to their beliefs. There was even a hotly debated Supreme Court opinion a couple years ago about a religious headwear exception to an employer’s dress code. These increasing changes in the law are forcing employers to take a time out to rethink their uniform and dress code strategies to make sure they do not travel out of bounds.