UPDATE: On February 8, 2017, the Supreme Court announced that it would delay until its October 2017 term oral arguments in the consolidated cases concerning the enforceability of class arbitration waivers in employment agreements.  (This updates our Blogpost dated Jan. 31, 2017.)

Many anticipate that Judge Gorsuch will have been confirmed by the Senate by then, which likely explains the Supreme Court’s decision to delay oral argument. Because the Court granted certiorari based upon a Circuit split, it presumably hopes to avoid a possible 4-4 vote by the current Justices, which would permit the various Circuit Court rulings to stand, leaving the matter unresolved nationally.

While we expect that Justice Gorsuch, a reputed strict constructionist, will in effect be a pro arbitration judge, his questions during oral argument will offer a glimpse of how he might decide the particular issues presented here concerning employment class arbitration.

On Friday, the Supreme Court agreed to decide the issue of whether employers may include class/collective action waivers in their arbitration agreements.  As we discussed in more detail here, multiple federal appeals courts have split over the issue.  This has created a difficult situation for employers and employees, especially where the employer operates in multiple states.  By the time the Supreme Court takes up the issue in April, there may be a ninth justice on the bench.  We will continue to provide updates as new information becomes available, but in the meantime, we encourage you to visit our sister blog ADR: Advice from the Trenches and read its latest terrific post: When an Arbitration Clause Sounds Permissive But is Not – Does “May” Really Mean “Must”?

The Second Circuit recently adopted the “Cat’s Paw” theory of liability in Title VII cases.  This was hardly a surprise as other Circuit Courts had done the same after the United States Supreme Court endorsed Cat’s Paw in a USERRA case.  But the Second Circuit went even further, allowing for the use of the Cat’s Paw argument in Title VII retaliation cases and in cases where a non-supervisory employee’s discriminatory actions lead the employer to take an adverse employment action against that employee’s co-worker.  Until now, Cat’s Paw had mostly focused on employer liability based on the actions of misbehaving supervisors in hostile work environment cases.  The decision puts additional pressure on employers to identify and eliminate discriminatory behavior in their workplaces. This post will briefly examine the Cat’s Paw doctrine and explain how the Second Circuit’s expanded its use in Vasquez v. Empress Ambulance Service, Inc., No. 15-3239 (2d Cir. Aug. 29, 2016).

Continue Reading Negligent Employers May Be Held Liable For a Non-Supervisory Employee’s Discriminatory Actions Under “Cat’s Paw” Theory Says Second Circuit

With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer.  This issue will almost certainly reach the Supreme Court given the deepening divide and the Court’s previous apparent interest in addressing issues surrounding class action waivers and arbitration agreements.

Continue Reading Where Are We With the Enforceability of Class Action Waivers in Arbitration Agreements?

In a carefully reasoned but ultimately restrained opinion the Seventh Circuit held that Title VII does not prohibit discrimination in employment on the basis of sexual orientation. While declining to become the first circuit court to extend Title VII to sexual orientation claims, the court acknowledged at length the persuasive force of a recent EEOC administrative decision and similar district court rulings noting the logical fallacy of enforcing Title VII’s protections against discrimination on the basis of gender nonconformity while permitting sexual orientation discrimination in the workplace to continue.

Continue Reading Seventh Circuit Holds Title VII Does Not Prohibit Sexual Orientation Discrimination, But Acknowledges Inherent Flaws in Precedent Underlying its Holding

In an important victory for employers, the Supreme Court in Spokeo, Inc. v. Robins held that a plaintiff does not have Article III standing to sue in federal court under the Fair Credit Reporting Act (FCRA) and other federal statutes absent a sufficient allegation of the existence of a concrete injury.  The Supreme Court was clear that alleging a bare procedural violation absent any concrete injury to the plaintiff was insufficient to move a case forward.  While it remanded the case to determine whether the plaintiff sufficiently alleged a concrete injury, employers should welcome this decision as a potential end to costly FCRA (and other statutory) class actions based on trivial violations of procedural requirements that don’t harm anyone.

Continue Reading Supreme Court’s Spokeo Decision Strengthens Standing Defense For Employers In FCRA And Other Statutory Class Actions

As a recent federal appellate decision confirmed, the Americans with Disabilities Act does not require employers to always accommodate a disabled employee.  Instead, it is the employee’s burden to first show that he or she can perform the essential functions of the job with said accommodation.  Alternatively, if the employee cannot perform the essential functions of the job, he or she may seek, as a reasonable accommodation, a reassignment to a vacant position as long as the employee is qualified for that position.  In both cases, the employer is relieved of the accommodation requirement if it can show an undue hardship would result.  It was these essential function and vacancy issues that were the focus of the First Circuit’s opinion in Lang v. Wal-Mart Stores.

Continue Reading Clearly Defining the Essential Functions of the Job Can Make or Break An ADA Case

The benefits world was set abuzz late last year with Equal Employment Opportunity Commission v. Flambeau, Inc., in which the Federal District Court for the Western District of Wisconsin upheld the validity of Wisconsin-based plastics manufacturer Flambeau, Inc.’s wellness program in the face of a challenge by the Equal Employment Opportunity Commission (EEOC). We provided the details of the case in an earlier post. The EEOC has since appealed the lower court’s decision to the Seventh Circuit. An earlier appellate case, Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012) reached a conclusion similar to Flambeau.

If the Seventh Circuit affirms the Flambeau decision on appeal, then the Americans with Disabilities Act, as amended by the ADA Amendments Act of 2008 (ADA) will have virtually no impact on wellness programs tied to employer-sponsored group plans in six states: Alabama, Florida, Georgia, Illinois, Indiana and Wisconsin—i.e., the states comprising the Seventh and Eleventh federal appellate circuits. An appeal to the Supreme Court would almost certainly follow, though it’s not clear whether the Court would accept the case in the absence of a split in the Circuits. But if the Seventh Circuit sides with the EEOC, then a confrontation before the Supreme Court is almost assured.

This post explains what is at stake in the EEOC’s appeal of the Flambeau decision and offers some predictions about the likely outcome.

Continue Reading EEOC v. Flambeau, Voluntary Plans, the Insurance Safe Harbor, and the Future of Wellness Programs

The United States Supreme Court ruled Tuesday that Tyson Foods employees could use representative evidence to establish liability and damages for class certification purposes.  The opinion gives the plaintiffs’ class action bar a second victory in the Court’s current term, albeit a far narrower one than many commentators had feared.  (We covered the first victory here.)  Perhaps, more importantly, the Court sidestepped a seemingly more controversial issue regarding whether a class may include uninjured class members.  That issue will have to be decided another day.  We analyze the Tyson Foods opinion below.

Continue Reading Taking an Evidentiary Approach, the Supreme Court Rules that Employees Can Use Representative Samples to Establish Classwide Liability and Damages, But It Leaves Open Question of Whether Classes Can Include Uninjured Class Members

Is the pick-off strategy to moot class actions still alive in the Southern District of New York?  Possibly.

Continue Reading New York Federal Court Ruling May Breathe New Life into Employment Class Action Pick-off Strategy; Addresses Supreme Court’s Gomez Decision