In a recent series of articles, we asked whether “class arbitration” — meaning the utilization of a Fed. R. Civ. P. 23 class action protocol in an arbitration proceeding — is ultimately viable. Given the nature of arbitration, we suggested that it arguably is not. We noted that the United States Supreme Court and various Courts of Appeal had examined several related procedural questions, but that they had not gotten to the core issues that would ultimately determine the viability of a class arbitration award.
As our readers know, we have been monitoring decisions regarding the ability of employers to take disciplinary action against employees for using marijuana at work (like this decision here). The most recent high court to weigh in on this topic is the Massachusetts Supreme Judicial Court, which looked at whether an employer may violate that state’s anti-discrimination law when it fires an employee because of a failed drug test based on the employee’s use of medical marijuana. The Court concluded that employers must accommodate medical marijuana users in the normal course under these circumstances to avoid a violation of that law. We discuss this important new decision – Barbuto v. Advantage Sales and Marketing, LLC – below.
In a decision that will provide some solace to employers asked to permit remote work as a reasonable accommodation under the Americans with Disabilities Act, the United States Court of Appeals for the Fifth Circuit recently held that the ADA did not require the Louisiana Attorney General’s Office to permit a litigation attorney to work from home indefinitely. In Credeur v. State of Louisiana, No. 16-30658 (5th Cir. June 23, 2017), the court determined that the employer did not fail to accommodate the attorney’s disability in violation of the ADA by denying her request to work remotely because it considered regular on-site attendance an essential function of her job and the statute and regulations required the court to “give the greatest weight to the employer’s judgment” on this issue.
After the Eleventh Circuit denied a petition for rehearing en banc last week in Evans v. Georgia Regional Hospital, LGBT advocacy group Lambda Legal announced that it will appeal the dismissal of its client’s complaint to the United States Supreme Court. Evans will petition the Court to hear the case and to hold that Title VII’s prohibition against sex discrimination includes a prohibition against sexual orientation discrimination. The Seventh Circuit created a circuit split on this issue in April when a majority of its judges decided that sexual orientation discrimination is per se sex discrimination; we wrote about that decision here.
California’s new Ban the Box regulation became effective last week. Effective July 1, 2017, questions concerning an applicant or employee’s criminal convictions will now be subject to the new regulation that employers can locate here. That regulation raises the bar employers must clear in order to pose criminal conviction-related questions to applicants and employees. And it raises it significantly. We discuss the new regulation below.
The Second Circuit has denied a plaintiff’s request to rehear argument en banc (that is, before all of the court’s judges) in a case alleging that Title VII of the 1964 Civil Rights Act prohibits discrimination based on sexual orientation. As the court is already scheduled to hear argument en banc on this issue in another case in September, the court’s decision is not especially surprising. As we’ve discussed in several posts (see here, here and here), the federal appeals courts are currently divided on this issue and it is likely that the Supreme Court will ultimately have to decide whether Title VII’s language prohibiting discrimination “because of … sex” is broad enough to encompass discrimination based on an employee’s sexual orientation.
A recent Fourth Circuit ruling in a case handled by Mintz Levin provides some comfort to employers concerned about terminating an employee who they believe has made a false complaint of discrimination. In Villa v. CaveMezze Grill, the Court ruled that an employer who fires an employee based on a good faith belief she engaged in misconduct is not liable for retaliation even if it later turns out that she had not, in fact, engaged in the misconduct. Affirming the lower court’s entry of summary judgment in a unanimous published opinion, the court opined that the employer could not be liable for retaliation because it lacked a retaliatory motive when it terminated a former employee. That is because the employer did not terminate the employee in retaliation for reporting the alleged harassment, but rather because it genuinely – albeit mistakenly – believed she had fabricated the report.
We previously discussed the conflict between a Second Circuit panel’s holding in April that Title VII of the 1964 Civil Rights Act did not prohibit discrimination on the basis of sexual orientation and the Seventh Circuit’s landmark ruling the same month reaching the opposite conclusion. The Second Circuit has now ordered en banc review of the April panel ruling, meaning that the entire court will rehear the case, and may be poised to follow the Seventh Circuit in extending Title VII to sexual orientation claims.
In a previous post we discussed the significant new obligations New York City’s “Freelance Isn’t Free Act” imposes on employers that retain the services of freelance independent contractors. On May 15, these requirements became effective for all freelance contracts executed on or after that date. Some of the law’s key provisions include the requirements that freelance services in excess of $800 be detailed in written contracts and that employers provide payment for freelance services within 30 days, and a prohibition on retaliation against freelancers who exercise their rights under the law.
The New York City Department of Consumer Affairs, Office of Labor Policy Standards has issued some limited initial guidance on the law but, as we discussed in our earlier post, numerous questions remain concerning the law’s practical implications. Please stay tuned to Employment Matters for updates as we continue to monitor this law’s impact on companies that rely on freelance workers.
As we recently blogged about here, efforts to ban inquiries related to applicants’ salary history have gained momentum across the country. Last Friday, New York City Mayor Bill de Blasio joined this trend by signing into law a bill prohibiting New York City employers from inquiring about prospective employees’ salary history. When it takes effect on October 31, 2017, the law will prohibit employers from communicating “any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history.” “Salary history” includes the applicant’s current or prior wage, benefits or other compensation.