Week of June 12, 2017
“[B]oth [the employer] and the DOL agree that there is no statutory authority for a private suit by an employee who claims only that her tips were withheld, but who does not also allege that she received less than the minimum wage (before tips) or that she received less than she was entitled for overtime work. And this is so even if [29 C.F.R.] § 531.52 is entitled to Chevron deference. We agree with the DOL and [the employer] that [the employee’s] allegations do not permit a private cause of action. Because that conclusion dictates the result in this case, we need not wade into the ongoing debate concerning the regulation’s validity under Chevron.” Per curiam opinion in Malivuk v. Ameripark, LLC, No. 16-16310 (11th Cir. June 9, 2017).
Week of June 5, 2017
“Premise 1: A plan established and maintained by a church is an exempt church plan. Premise 2: A plan established and maintained by a church includes a plan maintained by a principal-purpose organization. Deduction: A plan maintained by a principal-purpose organization is an exempt church plan…. Because Congress deemed the category of plans “established and maintained by a church” to “include” plans “maintained by” principal-purpose organizations, those plans – and all those plans – are exempt from ERISA’s requirements.” Supreme Court Justice Elena Kagan in Advocate Health Care Network v. Stapleton, No. 16-74 (June 5, 2017).
Week of May 29, 2017
“A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.” Circuit Judge Ann Claire Williams in Whitaker v. Kenosha Unified School District, No. 16-3522 (7th Cir. May 30, 2017).
Week of May 22, 2017
[The plaintiff] identifies additional purported comparators—male physicians who earned income from consulting websites but were not similarly disciplined by Vanderbilt or who were allowed to earn outside income as they transitioned to private practice or retirement (as [plaintiff] claims she asked to do)—who are [not] similar. As to the male physicians who engaged in online consulting, unlike [plaintiff], they ceased their consulting work when directed to do so and paid Vanderbilt the fees earned from such work. Further, the male physicians earning fees while transitioning to private practice or retirement received permission to do so from the … Executive Committee; [plaintiff] neither sought nor obtained such approval … Accordingly, we agree with the district court that no reasonable jury could find that ‘similarly situated non-protected employees were treated more favorably’ than [plaintiff], and we AFFIRM the district court’s order granting summary judgment.” Circuit Judge in Alice M. Batchelder in Simpson v. Vanderbilt University, No. 16-5381 (6th Cir. May 22, 2017).
Week of May 15, 2017
“Phillips does not dispute that depression is a recognized impairment or that the three activities Russell has identified are considered [Major Life Activities] under 29 C.F.R. § 1630.2(i)(1)(i). And the record contains competent evidence from Dr. McClure diagnosing Russell with depression as of October 10, 2012. But the question remains whether Russell showed that his depression significantly limited his sleeping, breathing, or concentrating. This required him to show both that his depression caused the limitation and that the limitation was significant.” Circuit Judge Nancy L. Moritz in Russell v. Phillips 66 Company, No. 16-5063 (10th Cir. May 4, 2017).
Week of May 8, 2017
“We do not see how the employer’s consideration of other factors would prevent the perpetuation of existing pay disparities if . . . prior salary is the only factor that causes the current disparity. For example, assume that a male and a female employee have the same education and number of years’ experience as each other, but the male employee was paid a higher prior salary than the female employee. The current employer sets salary by considering the employee’s education, years of experience, and prior salary. Using these factors, the employer gives both employees the same salary credit for their identical education and experience, but the employer pays the male employee a higher salary than the female employee because of his higher prior salary. In this example, it is prior salary alone that accounts for the pay differential, even though the employer also considered other factors when setting pay. If prior salary alone is responsible for the disparity, requiring an employer to consider factors in addition to prior salary cannot resolve the problem that the EEOC and the plaintiff have identified.” District Judge Lynn S. Adelman in Aileen Rizo v. Jim Yovino, No. 16-15372 (9th Cir. April 27, 2017).
Week of May 1, 2017
“In sum, given the focus [of our precedent] on guarding against employer conduct that materially affects an employee’s job performance and/or opportunity for advancement, an adverse employment action is one that affects an employee, not a former employee, in the terms, conditions or privileges of his or her employment, not in the terms, conditions or privileges of his or her unemployment … The text of [California’s Fair Employment and Housing Act] is silent with respect to whether an employer’s refusal to allow a former employee to rescind a resignation constitutes an adverse employment action … However … [t]he reason why an employee who voluntarily resigns cannot show that he or she has suffered an adverse employment decision is self-evident: refusing to accept rescission of a resignation is not an adverse employment action for the simple reason that the employment relationship has ended.” California Court of Appeals Associate Justice Jeffrey W. Johnson in Featherstone v. Southern Cal. Permanente Med. Group, No. B275225 (Cal. App. April 19, 2017).
Week of April 24, 2017
“The waiver in a predispute arbitration agreement of the right to seek public injunctive relief under these statutes would seriously compromise the public purposes the statutes were intended to serve. Thus, insofar as the arbitration provision here purports to waive McGill’s right to request in any forum such public injunctive relief, it is invalid and unenforceable under California law.” McGill v. Citibank, N.A., No. S224086, Slip Op. at 1 (Cal. Apr. 6, 2017).
Week of April 17, 2017
“Plaintiff black‐car drivers exercised their business acumen in choosing the manner and extent of their affiliation with CTG; were able to work for rival black‐car services, cultivate their own clients, and pick up street hails; made substantial investments in their businesses; and determined when, where, and how regularly to work. They owned or operated enterprises which were flexible and adaptable to market conditions. In short, based on the record here, [t]hese driver‐owners [were] small businessmen.” Circuit Judge Debra Ann Livingston in Saleem v. Corporate Transportation Group, LTD. (Case no. 15-88, 2d Cir. Apr. 12, 2017).
Week of April 10, 2017
“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line … We hold … that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Chief Circuit Judge Diane Wood in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. April 4, 2017).
Week of April 3, 2017
“In sum, gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.” Christiansen v. Omnicom Group, Inc., No. 16-748 (2nd Cir. Mar. 27, 2017).
Week of March 27, 2017
“The rule simply made it too easy for trial lawyers to go after American companies and American workers who contract with the federal government. The president saw workers, taxpayers and businesses were the ones who truly suffered under this rule, and he’s glad to be signing a resolution to eliminate it.” Press Secretary Sean Spicer, commenting on President Trump’s rollback of the Fair Pay and Safe Workplaces rule, which required that bidders for federal contracts disclose their labor law violations.
Week of March 20, 2017
“Exemption F [of Maine’s wage and hour statute] states that the protection of the overtime law does not apply to: ‘The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of [certain food products]’ … The [plaintiffs,] delivery drivers contend that, in combination, these words refer to the single activity of ‘packing,’ whether the ‘packing’ is for ‘shipment’ or for ‘distribution.’ … [The employer] responds that the disputed words actually refer to two distinct exempt activities, with the first being ‘packing for shipment’ and the second being ‘distribution.’ And because the delivery drivers … engage in the ‘distribution’ of [food,] [the employer] contends that the drivers fall within Exemption F and thus outside the overtime law’s protection … We conclude, however, that Exemption F is ambiguous … For that reason, we conclude that, under Maine law, we must construe the exemption in the narrow manner that the drivers favor, as doing so furthers the overtime law’s remedial purposes.” Circuit Judge David J. Barron in O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. March 13, 2017).
Week of March 13, 2017
“[A] successful EPA claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice.” Chiaramonte v. The Animal Medical Center, No. 16-0478-cv, United States Court of Appeals for the Second Circuit (January 26, 2017).
Week of March 6, 2017
“Despite the fact that not all of these Plaintiffs described how they were similarly situated or that there was any evidence of discriminatory intent, the payroll records illustrated that in each instance, the male made less than the female Plaintiff. Where those who are claiming discrimination actually made more money than those to whom they seek to be compared, there is no evidence of discriminatory intent … Therefore, the seventeen Plaintiffs who alleged that their salaries were the result of gender discrimination failed to make a prima facie showing that their salaries occurred under circumstances giving rise to an inference of discrimination.” District Judge Arthur D. Spatt in Garnett-Bishop v. N.Y. Community Bancorp, Inc., No. 12-cv–02285 (E.D.N.Y Mar. 2, 2017).
Week of February 27, 2017
“[T]he fact that the EEOC believes the ADEA permits pain and suffering and punitive recoveries does not constitute an intervening legal change sufficient to displace [our contrary precedent]. The EEOC has stated its interpretation of the ADEA’s remedial provisions in a policy directive and at least three sections of its Compliance Manual, and we are mindful that the EEOC’s interpretations of the ADEA reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ … Even if we found the EEOC’s interpretation persuasive, however, it would not provide a sufficient basis for departing from an established precedent.” Circuit Judge James E. Graves, Jr. in Vaughan v. Anderson Regional Med. Ctr., No. 16-60104 (5th Cir. Feb. 15, 2017).
Week of February 20, 2017
“Appellant argues that restrictive covenants are standard in the IT consulting industry and that [Defendant] can therefore be presumed to have known that there were non-competes binding the four team members. But the record does not show that non-competes are universal, only “common policy” … That these individuals might likely have been subject to non-competes is not the same as knowledge that they were subject to non-competes. This is all the more so because [Defendant] in fact inquired of these four individuals: from its perspective, whatever uncertain probability of non-competes existing was settled into a (false) certainty by asking and receiving an answer … Appellant argues that [Defendant] should have conducted better due diligence and should have made certain assumptions about industry practice, not that it in fact knew about the contracts in question.” Circuit Judge Greenaway, Jr. in Acclaim Systems, Inc. v. Infosys, Ltd., No. 16-1770 (3d Cir. Feb. 9, 2017).
Week of February 13, 2017
“Better, we think to follow [a] traditional view, keep it simple, and employ the same and straightforward standard for liability [from the high court’s 1977 Mt. Healthy v. Doyle decision] for all cases at all stages in the litigation rather than devise special and idiosyncratic (McDonnell Douglas) rules that depend on what kind of proof you allege, what kind of case you allege, and where in the life of the litigation you happen to find yourself . . . For that alternative may surely promise more process — and more cost and more delay and more traps for the unwary — but we are unpersuaded it promises more accurate outcomes or that it enjoys any grounding in our rules, any written law before us, or traditional practice.” Supreme Court nominee Neil Gorsuch in Walton v. Powell, No. 14-2166 (10th Cir. April 19, 2016).
Week of February 6, 2017
“Plaintiffs offer several textual arguments in support of their position that their [arbitration] agreements reflect the parties’ intent to arbitrate class claims. First, Plaintiffs argue that the clause ‘[a]ny dispute or claim arising out of or relating to Employee’s employment shall be submitted to binding arbitration’ is intentionally broad and designed to encompass class or collective actions … But Plaintiffs’ argument misses a critical point: the agreement specifies that the dispute or claim must arise out of or relate to the particular employee’s employment, not any employee’s employment. Further, the Supreme Court was clear … that ‘[a]n implicit agreement to authorize class-action arbitration’ cannot be inferred ‘solely from the fact of the parties’ agreement to arbitrate’ … On its face, the ‘any dispute’ language in Plaintiffs’ agreements shows only the parties’ general intent to arbitrate their disputes. We cannot infer an intent to arbitrate class claims on this basis.” Circuit Judge Luis Felipe Restrepo in Opalinski v. Robert Half International Inc., No. 15-4001 (3d Cir. Jan. 30, 2017).
Week of January 30, 2017
“[Plaintiff] argues that the honest-belief doctrine [permitting summary judgment if the employer honestly but mistakenly believed its non-discriminatory reason for taking an adverse action] eviscerates the third prong of the McDonnell Douglas framework (i.e.,the pretext prong) by short circuiting a plaintiff’s ability to show that the employer’s actions were motived by or resulted in illegal discrimination … We disagree … [O]nce an employer has posited a legitimate, nondiscriminatory reason for terminating an employee, the employee may access many evidentiary tools to expose its employer’s stated reason as pretext … For instance, an employee may raise a triable inference of pretext by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s stated reason for terminating the employee … Moreover, showing disparate treatment—by demonstrating that the employer treated employees similarly situated to the plaintiff employee differently (i.e., more favorably)—is a particularly potent instrument to discredit an employer’s allegedly legitimate reasons … These are just two of many tools plaintiff employees may use to raise a triable inference of pretext and thereby undercut an employer’s asserted honest belief.” Circuit Judge Jerome A. Holmes in Dewitt v. Southwestern Bell Telephone Co., No. 14-3192 (8th Cir. Jan. 18, 2017).
Week of January 23, 2017
“Disparate-impact claims in ADEA cases ordinarily evaluate the effect of a facially neutral policy on all employees who are at least forty years old—that is, all employees covered by the ADEA. In this case, plaintiffs claim to have identified a policy that disproportionately impacted a subgroup of that population: employees older than fifty. But because the policy favored younger members of the protected class, adding those individuals to the comparison group washes out the statistical evidence of a disparity … [W]e hold that … plaintiffs can demonstrate [a disproportionate adverse impact based on age] with various forms of evidence, including forty-and-older comparisons, subgroup comparisons, or more sophisticated statistical modeling, so long as that evidence meets the usual standards for admissibility. A contrary rule would ignore significant age-based disparities.” Chief Circuit Judge D. Brooks Smith in Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435 (3d Cir. Jan. 10, 2017).
Week of January 16, 2017
“This new proposal would amend State law to hold the top 10 members of out-of-state limited liability companies personally financially liable for unsatisfied judgments for unpaid wages. This liability already applies to in-state and out-of-state corporations, and to in-state LLCs, but not to out-of-state LLCs. Further, the Governor will advance legislation to empower the Labor Commissioner to directly enforce all wage liabilities on behalf of workers with unpaid wage claims. Combined, these measures will get more money back into the hands of the hardworking New Yorkers who earned it.” New York Governor Andrew Cuomo’s press release proposing amendments to New York law (Jan. 8, 2017).
Week of January 9, 2017
“[Named plaintiffs] sought to represent a class of all persons separated from hourly employment with [the employer] in Illinois between December 11, 2003, and the conclusion of this action … who were subject to [the employer’s] Vacation Policy … and who did not receive all earned vacation pay benefits … Under this definition class membership plainly turns on whether the former employee has a valid claim. That is a classic fail-safe class, and the district judge properly rejected it … Their proposed alternative class consists of all separated employees … [without identifying] any unlawful conduct … that spans the entire class and caused … all class members to suffer the same injury … Rather, they simply argue that some separated employees … did not receive all the vacation pay they were due under the applicable policy. That may be true … [b]ut establishing those violations (if there were any) would not involve any classwide proof.” Circuit Judge Diane Schwerm Sykes in McCaster v. Darden Restaurants, Inc., No. 15-3258 (7th Cir. Jan. 5, 2017).
Week of January 2, 2017
“… [O]n-call rest periods do not satisfy an employer‘s obligation to relieve employees of all work-related duties and employer control. In the context of a 10-minute break that employers must provide during the work period, a broad and intrusive degree of control exists when an employer requires employees to remain on call and respond during breaks … An employee on call cannot take a brief walk — five minutes out, five minutes back — if at the farthest extent of the walk he or she is not in a position to respond. Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time — like pumping breast milk … or completing a phone call to arrange child care. The conclusion that on-call rest periods are impermissible is not only the most logical in light of our construction of [California’s] Wage Order 4 … but is the most consistent with the protective purpose of the Labor Code and wage orders …” California Supreme Court Associate Justice Mariano-Florentino Cuéllar in Augustus v. ABM Security Services, Inc., No. S224853 (Cal. Sup. Ct. Dec. 22, 2016).
Week of December 26, 2016
“In granting employees the ability to enforce the [FLSA’s] antiretaliation provision on their own, Congress allowed them to recover not just wages and liquidated damages but also ‘such legal or equitable relief as may be appropriate’ … As the Seventh Circuit has recognized, this is expansive language that should be read to include the compensation for emotional distress that is typically available for intentional torts like retaliatory discharge … This also explains the more limited damages available for failure to pay minimum wage or overtime pay because an employer can inadvertently pay less than the law requires …; it cannot unintentionally retaliate against an employee who complains about it.” Circuit Judge Gregg Costa in Pineda v. JTCH Apartments, LLC, No. 15-10932 (5th Cir. Dec. 19, 2016).
Week of December 19, 2016
“Requiring reassignment [as an accommodation to a disabled employee] in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’ As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients … [T]he ADA only requires an employer [to] allow a disabled person to compete equally with the rest of the world for a vacant position …” District Judge Paul C. Huck, sitting by designation at the Eleventh Circuit, in EEOC v. Saint Joseph’s Hospital, Inc., No. 15-14551 (Dec. 7, 2016).
Week of December 12, 2016
“Appellants in this case have not, and quite frankly cannot, allege that the activities they pursued as student athletes qualify as ‘work’ sufficient to trigger the minimum wage requirements of the FLSA. Student participation in collegiate athletics is entirely voluntary. Moreover, the long tradition of amateurism in college sports, by definition, shows that student athletes—like all amateur athletes—participate in their sports for reasons wholly unrelated to immediate compensation. Although we do not doubt that student athletes spend a tremendous amount of time playing for their respective schools, they do so—and have done so for over a hundred years under the NCAA—without any real expectation of earning an income. Simply put, student-athletic ‘play’ is not ‘work,’ at least as the term is used in the FLSA. We therefore hold, as a matter of law, that student athletes are not employees and are not entitled to a minimum wage under the FLSA.” Circuit Judge Michael Kanne in Berger v. NCAA, et al., No. 16-1558 (7th Cir. Dec. 5, 2016).
Week of December 5, 2016
“The updated salary level under the [Department of Labor’s] Final [overtime] Rule is commensurate with salary levels that the Department of Labor has set over the past 75 years. Although plaintiffs described the $30 per week compensation level adopted for executive and administrative employees in 1938 as ‘minimal’ … and suggested that the updated salary level is materially different in this respect, in fact the ratio between the minimum salary level and minimum wage is roughly the same under the Final Rule as it was under the 1938 regulations. The minimum wage in 1938 was only 25 cents per hour … Thus, the $30 weekly salary level set by the 1938 EAP [executive, administrative, professional] regulations was three times the minimum wage for a 40-hour workweek ($10). Similarly, the minimum weekly salary level under the Final Rule is $913 … and the current hourly minimum wage is $7.25 … Thus, the minimum weekly salary level under the Final Rule is 3.15 times the current minimum wage for a 40-hour workweek ($290).” Appellants’ Motion for Expedited Briefing and Oral Argument in States v. U.S. Department of Labor, No. 16-41606 (5th Cir. Dec. 2, 2016).
Week of November 28, 2016
“After reading the plain meanings together with the statute, it is clear Congress intended the EAP [executive, administrative, professional] exemption to apply to employees doing actual executive, administrative, and professional duties. In other words, Congress defined the EAP exemption with regard to duties, which does not include a minimum salary level. The statute’s use of ‘bona fide’ also confirms Congress’s intent … The plain meaning of ‘bona fide’ and its placement in the statute indicate Congress intended the EAP exemption to apply based upon the tasks an employee actually performs. Therefore, Congress unambiguously expressed its intent for employees doing ‘bona fide executive, administrative, and professional capacity’ duties to be exempt from overtime.” District Judge Amos L. Mazzant in States v. U.S. Department of Labor, No. 16-cv-00731 (E.D. Tex. Nov. 22, 2016).
Week of November 21, 2016
“Our understanding of the representative nature of FLSA collective actions is consistent with our conclusion that the opt-in plaintiffs cannot pursue this appeal. [The named plaintiff] filed this proceeding, representing both himself and others ‘similarly situated.’ [The named plaintiff] alone litigated in that representational role: after filing the complaint, he raised and responded to motions, participated in alternative dispute resolution, and actively engaged in the litigation process. The opt-in plaintiffs were mere passive observers until they were struck from the proceeding entirely. When they opted to benefit from the efficiencies of participating in a [FLSA] collective action, [the opt-in plaintiffs] agreed to set aside the individual authority to litigate, including the ability to appeal.” Circuit Judge D. Brooks Smith in Halle v. West Penn Allegheny Health System, Inc., No. 15-3089 (3d Cir. Nov. 18, 2016).
Week of November 14, 2016
“[California Assembly Bill] AB 1687 amends the California Civil Code to prohibit Plaintiff IMDb.com, Inc. … from publishing the truthful ages or dates of birth of public figures in the entertainment industry. IMDb shares the worthy goal of preventing age discrimination. But AB 1687 is an unconstitutional law that does not advance, much less achieve, that goal. To the contrary, rather than passing laws designed to address the root problem of age discrimination, the State of California has chosen to chill free speech and undermine public access to factual information. As such, AB 1687 is clearly unconstitutional and cannot be enforced.” Complaint in IMDB.com, Inc. v Harris, No. 3:16-cv-06535 (N.D. Cal. Nov. 10, 2016).
Week of November 7, 2016
“The undisputed evidence depicts an employee departing for vacation despite being scheduled to work, and then conveniently calling in FMLA leave 12 hours after the last plane departed that would allow him to return before his scheduled shift. [The employee] also waited to contact [the employer] until the middle of the night in Washington when no one was present to answer the phone and ask for details about his FMLA claim … When [the employee] was later questioned about his use of FMLA leave, he first denied even being scheduled to work, and then provided a constantly changing story about his attempt to return home … Unlike [the employee’s] shifting narrative, the company’s explanation for its action has remained a consistent one. … [The employee] fails to meet his burden of showing that [the employer’s] explanation for his discharge was pretextual, and therefore fails to establish a genuine dispute of material fact suitable for trial.” Fourth Circuit Judge J. Harvie Wilkinson III in Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016).
Week of October 31, 2016
“The university’s 2012 employee handbook [containing a mandatory arbitration clause] states that acceptance of the agreement ‘is a condition of employment at the Company.’ Despite this condition, the plaintiffs continued to work for the university for the better part of two years after the handbook and the policies contained therein were promulgated. Furthermore, while the plaintiffs deny that they received the acknowledgment form, that the acknowledgment form was available on their MyHR page, and that they electronically signed the acknowledgment form, there was no dispute before the district court that the plaintiffs received the handbook. Thus, the plaintiffs had notice of the arbitration agreement. In sum, there is no genuine issue of material fact that the plaintiffs accepted the arbitration agreement, if only by continuing to work at the company.” Circuit Judge John M. Rogers in Aldrich v. University of Phoenix, Inc., No. 16-5276 (6th Cir. Oct. 24, 2016).
Week of October 24, 2016
“We are mindful that an employer might elude its obligation to accommodate a disabled employee by giving him a job that he was destined to botch with or without training … Such predictable failure could be traceable to the worker’s want of skills or the demoralizing effects of failure and appearing inept. This case, however, does not present such a scenario. The City offered to make [the plaintiff] an assistant and he accepted. [Plaintiff] does not contend that the initial job assignment was an unreasonable accommodation. And once [plaintiff] started the new position, the City provided training to help him gain necessary skills and gave him the opportunity of shadowing an experienced assistant. We thus do not see a basis for concluding that the City failed to engage in good faith by not finding him a new position after he had shown no desire to try and succeed in the first position.” Circuit Judge Gregg Costa in Dillard v. City of Austin, No. 15-50779 (5th Cir. Sept. 16, 2016).
Week of October 17, 2016
“[The Department of Labor’s] use of, and conclusive emphasis on, the salary test defies the statutory text of the [FLSA’s white collar exemption provision], Congressional intent and common sense. One would think–as the statute indicates–that actually performing white collar duties (i.e., being employed in a white collar capacity) would be the best indicator of white collar exempt status. Instead, DOL relegates the type of work actually performed to a secondary consideration while dangerously using the salary basis test, unencumbered by limiting principles, as the exclusive test for determining overtime eligibility for [executive, administrative and professional] employees … Worse still, under the guise of interpretation, DOL included in their final rule an automatic indexing mechanism to ratchet-up the salary level every three years without regard for current economic conditions or the effect on public and private resources …” Complaint in States v. U.S. Department of Labor, No. 16-cv-00407 (E.D. Tx. Sept. 20, 2016).
Week of October 10, 2016
“[T]he FLSA explicitly permits offsetting against overtime only with certain compensation that is statutorily excluded from the regular rate of pay, that is, only three categories of compensation, which are extra compensation provided by a premium rate. Unlike the compensation addressed by the other exclusions, the three categories of excludable compensation that qualify for the offsetting provision … are paid at a premium rate … Only extra compensation that falls within [these] sections may be creditable – no other types of remuneration for employment may be so credited.” Circuit Judge Marjorie Rendell in Smiley v. E.I. Dupont De Nemours and Co., No 14-4583 (3d Cir. Oct. 7, 2016).
Week of October 3, 2016
“An FLSA collective action and a Rule 23(b)(3) class action may be fundamentally different creatures, but they are not ‘irreconcilable’ … Our sister Circuits have ruled, and we agree, that the FLSA’s plain text does not indicate that a collective action and a state-law class action cannot be maintained at the same time … Congress knew how to categorically separate an FLSA collective action from other types of actions. Even with that knowledge, Congress included nothing in the statute which would cause an FLSA collective action to preempt a Rule 23(b)(3) class action based on state law, or vice versa … If Congress had wanted to prevent state-law Rule 23(b)(3) class actions from going forward together with FLSA collective actions, it would not have included a savings clause explicitly saying that the FLSA does not preempt state labor laws.” Circuit Judge Beverly B. Martin in Calderone v. Scott, Nos. 15-14187 (11th Cir. Sept. 28, 2016).
Week of September 26, 2016
“[C]laims for sex discrimination and retaliation pursuant to [Massachusetts law] may be combined to support a plaintiff’s claim only when the discriminatory acts emanate from the same discriminatory animus … No such single animus is presented [where] the alleged retaliatory conduct appears to stem from a distinct intent to punish or to rid a workplace of someone who complains of unlawful practices … [Combination] claims have … generally involved discrimination based upon a combination of identity characteristics (i.e., sex and race) which intersected to create a discrete protected group, rather than discrimination based upon the combination of a protected characteristic and protected conduct … The former claims are more likely to be motivated by a single animus.” District Judge Nathaniel M. Gorton in Sauer v. Belfor USA Group, Inc., No. 15-cv-11882 (D. Mass. Sept. 7, 2016).
Week of September 19, 2016
“Critically, the EEOC … did not allege that dreadlocks themselves are an immutable characteristic of black persons, and in fact stated that black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race. That dreadlocks are a ‘natural outgrowth’ of the texture of black hair does not make them an immutable characteristic of race … [T]he EEOC failed to state a plausible claim that [the employer] intentionally discriminated against [the plaintiff] on the basis of her race by asking her to cut her dreadlocks pursuant to its race-neutral grooming policy. The EEOC’s allegations—individually or collectively—do not suggest that [the employer] used that policy as proxy for intentional racial discrimination.” Circuit Judge Adalberto Jordan in EEOC v. Catastrophe Management Solutions, No. 14-13482 (11th Cir. Sept. 15, 2016).
Week of September 12, 2016
“These interns worked at Hearst magazines for academic credit, around academic schedules if they had them, with the understanding that they would be unpaid and were not guaranteed an offer of paid employment at the end of the internship. They learned practical skills and gained the benefit of job references, hands-on training, and exposure to the inner workings of industries in which they had each expressed an interest. While their internships involved varying amounts of rote work and could have been more ideally structured to maximize their educational potential, each Plaintiff benefitted in tangible and intangible ways from his or her internship, and some continue to do so today as they seek jobs in fashion and publishing. Given the totality of the undisputed evidence, no reasonable juror could conclude that the Plaintiffs were employees under governing law.” District Judge J. Paul Oetken in Wang v. The Hearst Corporation, No. 12-cv-00793 (S.D.N.Y. Aug. 24, 2016).
Week of September 5, 2016
“[A]n employer who, non-negligently and in good faith, relies on a false and malign report of an employee who acted out of unlawful animus cannot … be held accountable for or said to have been motivated by the employee’s animus … Only when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee’s motivation be imputed to the employer and used to support a claim under Title VII. Put simply, an employer can still ‘just get it wrong’ without incurring liability under Title VII … but it cannot ‘get it wrong’ without recourse if in doing so it negligently allows itself to be used as conduit for even a low-level employee’s discriminatory or retaliatory prejudice.” Second Circuit Judge Guido Calabresi in Vasquez v. Empress Ambulance Service, Inc., No. 15-3239 (Aug. 29, 2016).
Week of August 29, 2016
“The illegality of the ‘separate proceedings’ term here has nothing to do with arbitration as a forum. It would equally violate the NLRA for [an employer] to require its employees to sign a contract requiring the resolution of all work-related disputes in court and in ‘separate proceedings.’ The same infirmity would exist if the contract required disputes to be resolved through casting lots, coin toss, duel, trial by ordeal, or any other dispute resolution mechanism, if the contract (1) limited resolution to that mechanism and (2) required separate individual proceedings. The problem with the contract at issue is not that it requires arbitration; it is that the contract term defeats a substantive federal right to pursue concerted work-related legal claims.” Ninth Circuit Judge Sidney R. Thomas in Morris v. Ernst & Young, LLP, No. 13-16599 (Aug. 22, 2016).
Week of August 22, 2016
“Our conclusion is that affording student assistants the right to engage in collective bargaining will further the policies of the [National Labor Relations] Act, without engendering any cognizable, countervailing harm to private higher education. Accordingly, we overrule Brown University and hold that student assistants who have a common-law employment relationship with their university are statutory employees entitled to the protections of the Act.” NLRB Decision in The Trustees of Columbia University in the City of New York, 364 NLRB No. 90 (Aug. 23, 2016).
Week of August 15, 2016
“[The NLRA] does not require a company facing a union election to freeze its operations. An employer may make regularly scheduled benefits changes if it does so without treating employees differently based on their participation in protected activities, and without any motive of inducing employees to vote against the union … And where its legitimate business purpose so directs, an employer may move ahead with even an unscheduled, discretionary benefits change in the pendency of a representation election … But where, as here, an employer, without any legitimate explanation, schedules a discretionary, one-time benefit restoration just before an election and excludes from the benefit only the union-eligible employees, that employer reasonably may be viewed as attempting to discourage eligible employees’ support for the union.” Circuit Judge Pillard in Care One at Madison Avenue, LLC v. NLRB, No. 15-1010 (D.C. Cir. August 12, 2016).
Week of August 1, 2016
“We allow two women or two men to marry, but allow employers to terminate them for doing so. Perchance, in time, these inconsistencies will come to be seen as defying practical workability and will lead us to reconsider our precedent. . . . Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it . . .; many of the federal courts to consider the matter have stated that they do not condone it . . .; and this court undoubtedly does not condone it . . . . But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.” Circuit Judge Rovner in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July28 2016).
Week of July 25, 2016
“Today, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it will implement changes to its collection of demographic data from individuals who file charges with the agency. These changes will allow EEOC to collect more precise data about the religion of the individual alleging discrimination. This will assist the agency, as well as the public, in recognizing and responding to trends in the data.” Whitehouse.gov, Summary on Combating Religious Discrimination Today (July 22, 2016).
Week of July 18, 2016
“Though perhaps not clear from the language of the Guidance, we conclude that the proper understanding of the Burton panel’s language is that the staffing agency must have knowledge of the discrimination to establish its “participation” or failure to take corrective action. Specifically, we hold that a staffing firm participates in discrimination by honoring a client’s discriminatory transfer request only if it knows or should have known the client’s reasons were discriminatory.” Circuit Judge Southwick in Nicholson v. Securitas Security Services USA, Inc., No. 15-10582 (5th Cir. July 18, 2016).
Week of July 11, 2016
“[W]hen an employee’s disability has actually resulted in conduct that is intolerable in the workplace, the direct-threat defense does not apply: the case is no longer about potential but rather actual dangers that an employee’s disability poses to herself and others … [W]hat is at issue … is not the employer’s qualification standards and selection criteria and whether they tend to screen out people with disabilities … but whether the employer must tolerate threatening (and unacceptable) behavior because it results from the employee’s disability. [Seventh Circuit precedent] answers no: the employee is no longer ‘otherwise qualified’ to perform the job.” Circuit Judge Ilana Rovner in Felix v. Wisconsin DOT, No. 15-2047 (7th Cir. July 6, 2016).
Week of July 4, 2016
“‘[L]egal consequences’ are created whenever the challenged agency action has the effect of committing the agency itself to a view of the law that, in turn, forces the plaintiff either to alter its conduct, or expose itself to potential liability.” Circuit Judge E. Grady Jolly in State of Texas v. E.E.O.C., Case No. 14-10949 (5th Cir. June 27, 2016) (sending case back to district court to determine whether EEOC Enforcement Guidance regarding criminal background checks violates the Administrative Procedures Act).
Week of June 27, 2016
“Simply put, to treat someone differently based on her attraction to women is necessarily to treat that person differently because of her failure to conform to gender or sex stereotypes, which is, in turn, necessarily discrimination on the basis of sex.” District Judge Mark E. Walker in Winstead v. Lafayette County Board of County Commissioners, 16 Civ. 00054-MW-GRJ (N.D. Fla. June 20, 2016) (finding that sexual orientation discrimination is protected against under Title VII).
Week of June 20, 2016
“One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made … That requirement is satisfied when the agency’s explanation is clear enough that its path may reasonably be discerned … But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law.” Justice Kennedy writing for the majority in Encino Motorcars, LLC v. Navarro, No. 15-415 (June 20, 2016).
Week of June 13, 2016
“The exotic dancers claim that all aspects of their work … were closely regulated by defendants, from their hours, to their earnings to their workplace conduct. The clubs, not surprisingly, portray the dancers as free agents that came and went as they pleased and used the clubs as nothing but a rented space in which to perform. The dueling depictions serve to remind us that the employee/independent contractor distinction is not a bright line but a spectrum, and that courts must struggle with matters of degree rather than issue categorical pronouncements.” McFeeley v. Jackson Street Entertainment, LLC, No. 15-1583 (4th Cir. June 8, 2016).
Week of June 6, 2016
“[FLSA] Section 216(b) is silent regarding the court’s authority when the defendant is the prevailing party. Because § 216(b) addresses only an award of costs to a prevailing plaintiff and neither § 216(b) nor any other provision of the FLSA precludes an award of costs to a prevailing defendant, this Court concludes that [the Defendant] is not precluded from collecting its costs incurred. The fact that a prevailing party prosecutes its rights under the Federal Rules of Civil Procedure to an award of costs cannot be seen as chilling the flow of litigation.” District Judge Bough in Lochridge v. Lindsey Management Co., Inc., No. 14-3799 (8th Cir. June 2, 2016).
Week of May 31, 2016
“The standard rule for limitations periods requires us first to determine what is a ‘complete and present cause of action’ for a constructive-discharge claim. We hold that such a claim accrues only after an employee resigns. . . . We [also] hold that a constructive-discharge claim accrues—and the limitations period begins to run—when the employee gives notice of his resignation, not on the effective date of that resignation.” Justice Sotomayor in Green v. Brennan, No. 14-613 (S. Ct. May 23, 2016).
Week of May 23, 2016
“In this Final Rule the Department updates the standard salary level and total annual compensation requirements to more effectively distinguish between overtime-eligible white collar employees and those who may be exempt, thereby making the exemption easier for employers and employees to understand and ensuring that the FLSA’s intended overtime protections are fully implemented.” Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, A Rule by the Wage and Hour Division (May 23, 2016).
Week of May 16, 2016
“In order to best effectuate these central policies of the [NLRA], [NLRB] Regions should request that the Board adopt a rule that, absent an agreement between the parties, an employer may lawfully withdraw recognition from a Section 9(a) representative based only on the results of an [employer-filed petition] or [employee-filed decertification] election. This proposed rule will benefit employers, employees, and unions alike by fairly and efficiently determining whether a majority representative has lost majority support. Moreover, the proposed rule is even more appropriate now because the Board’s revised representation case rules have streamlined the election process.” NLRB General Counsel Memorandum on union recognition (May 9, 2016).
Week of May 9, 2016
“Since at least March 24, 2015, Respondent has misclassified its employee-drivers as independent contractors, thereby inhibiting them from engaging in Section 7 activity and depriving them of the protections of the [NLRA].” Intermodal Bridge Transport, Case 21-CA-157647 (NLRB, Region 21, Complaint and Notice of Hearing, Apr. 18, 2016).
Week of May 2, 2016
“We further conclude that the circumstances of this case warrant an equitable extension. A short noncompete term inures to the former employee’s benefit; the employee should not then be allowed to avoid the term altogether through dilatory tactics, or even just by taking advantage of the delays incident to litigation.” Ocean Beauty Seafoods, LLC v. Pacific Seafood Group Acquisition Co., Inc., No. 15-35608 (9th Cir. Apr. 18, 2016).
Week of April 25, 2016
“WHEREAS, the Named Plaintiffs and Class Counsel, based on their own independent investigations and evaluations, have examined the benefits to be obtained under the terms of this Settlement Agreement, have considered the claims of the Named Plaintiffs, the claims of the average Settlement Class Member, the risks associated with the continued prosecution of the O’Connor Action and Yucesoy Action, and the likelihood of success on the merits of the O’Connor Action and Yucesoy Action, and believe that, after considering all the circumstances, including the uncertainties surrounding the risk of further litigation and the defenses that Defendants have asserted and could assert, the proposed Settlement set forth in this Agreement is just, fair, reasonable, adequate, in the best interests of the Named Plaintiffs and the Settlement Class, and confers substantial benefits upon the Settlement Class.” Proposed Class Action Settlement and Release in Yucesoy et al. v. Uber Technologies, et al., 3:13-cv-03826-EMC (N.D. Cal. April 21, 2016) (Chen, J.) (seeking to court approval of proposed settlement to pay $100 million to settle CA and MA misclassification lawsuits).
Week of April 18, 2016
“The Supreme Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc. … held that, in a Title VII action alleging disparate treatment, the plaintiff need only show that the need for a religious accommodation was a factor motivating the employer’s adverse decision … Knowledge is not a requirement of a Title VII claim … [The plaintiff’s] claims are distinguishable, because she alleged, not Title VII violations, but violations of the ADA, which defines discrimination ‘to include an employer’s failure to make reasonable accommodation to the known physical or mental limitation.” (emphasis in original). Fifth Circuit opinion in Mendoza v. Roman Catholic Archbishop of Los Angeles, No. 14-55651 (April 14, 2016)
Week of April 11, 2016
“[A] person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.” Fifth Circuit Court of Appeals discussing the reach of Title VII’s retaliation provision in Equal Employment Opportunity Commission v. Rite Way Service, Inc., No. 15-60380 (Apr. 8, 2016)
Week of April 4, 2016
“[I]t is not at all clear under FEHA that employers have no duty to provide reasonable accommodations in the associational disability context. No published California case has determined whether employers have a duty under FEHA to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. We hold that FEHA creates such a duty according to the plain language of the Act.” District Judge Richard Fruin in Castro-Ramirez v. Dependable Highway Express, Inc., No. BC511197 (Apr. 4, 2016)
Week of March 28, 2016
“Workers should know who is behind an anti-union message. It’s a matter of basic fairness. This new rule will allow workers to know whether the messages they’re hearing are coming directly from their employer or from a paid, third-party consultant. Full disclosure of persuader agreements gives workers the information they need to make informed choices about how they pursue their rights to organize and bargain collectively. As in all elections, more information means better decisions.” U.S. Secretary of Labor Thomas E. Perez in press release regarding the DOL’s release of the Final Union Persuader Rule (Mar. 24, 2016).
Week of March 21, 2016,
“Whether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study . . . has been permitted by the Court so long as the study is otherwise admissible. . . . The fairness and utility of statistical methods in contexts other than those presented here will depend on facts and circumstances particular to those cases.” Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 577 U.S. ___ (Mar. 22, 2016) (citations omitted) (affirming lower court certification order).
Week of March 14, 2016
“It is clear that, pursuant to [the Company’s employee handbook investigation] policy, the investigation would have been conducted regardless of whether litigation ensued. As a result, the investigation was conducted in the ordinary course of business. Accordingly, the work-product privilege does not apply to [the investigator’s] notes.” District Judge Susie Morgan in Ambrose-Frazier v. Herzing, Inc. (E.D. La. Mar. 9, 2016) (ordering production of complaint investigation notes in connection with an employment discrimination action).
Week of March 7, 2016
“Here, the [arbitration] Plan provides that [the employer] may make unilateral changes to the Plan, purportedly including termination, and that such a change ‘shall be immediately effective upon notice to’ employees. [The employer’s] retention of this unilateral power to terminate the Plan without advance notice renders the Plan illusory …” Fifth Circuit opinion in Nelson v. Watch House Int’l, LLC, No. 15-10531 (March 2, 2016).
Week of February 29, 2016
“A county, municipality, or any other political subdivision of this state shall not enact or administer any ordinance, policy, rule, or other mandate requiring an employer to provide any employee, class of employees, or independent contractor with any employment benefit, including, but not limited to, paid or unpaid leave, vacation, wage, or work schedule, that is not required by state or federal law, and shall not require an employer to compensate an employee, class of employees, or independent contractor for any vacation or other form of leave for which state or federal law does not require the employee, class of employees, or independent contractor to be compensated.” Section 2(b) of the Alabama Uniform Minimum Wage and Right-to-Work Act (preempting local jurisdictions from enacting their own wage, leave, benefit and collective bargaining laws).
Week of February 22, 2016
“To be clear, a claim of discrimination based on Hispanic ethnicity or lack thereof may also be cognizable under the rubric of national-origin discrimination, depending on the particular facts of each case. We hold only that for purposes of Title VII, ‘race’ encompasses ethnicity, just as it does under § 1981.” Second Circuit opinion in Village Freeport v. Barella, No. 14-2270-cv (L) (Feb. 16, 2016).
Week of February 15, 2016
“As Defendants’ seek Rule 67(a) permission to deposit funds into court to moot this case and not to relive themselves of the burden of administering an asset, and given the Supreme Court’s directive that ‘a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted . . .the Court finds that granting the Defendant’s Rule 67(a) Motion is not warranted.” Judge Sandra J. Feuerstein in Brady v. Basic Research, L.L.C., 13 Civ. 07169 (Feb. 3, 2016), further foreclosing an employer’s ability to effectively execute on a pick-off strategy in class/collective action cases.
Week of February 8, 2016
“It is in everyone’s best interest when managers talk to an employee about his or her request for religious accommodation and explore options that will keep someone employed, such as adjusting a work schedule to allow the observation of the employee’s Sabbath, instead of jumping to termination.” EEOC Philadelphia District Director Spencer H. Lewis, Jr. (Feb. 8, 2016).
Week of February 1, 2016
“We have 357 days to put concrete things into motion that will continue to protect workers and their families even when we’re gone.” Department of Labor Solicitor M. Patricia Smith at the New York State Bar Association’s Annual Meeting (January 29, 2016).
Week of January 25, 2016
“As a result of continual changes in the structure of workplaces, the possibility that a worker is jointly employed by two or more employers has become more common in recent years. In an effort to ensure that workers receive the protections to which they are entitled and that employers understand their legal obligations, the possibility of joint employment should be regularly considered …” Wage and Hour Division Administrator’s Interpretation (Jan. 20, 2016).
Week of January 18, 2016
“I conclude that the protections set forth in the ADA’s safe harbor enable employers to design insurance benefits plans that require otherwise prohibited medical examinations as a condition of enrollment without violating [the safe harbor provision].” District Judge Barbara B. Crabb in EEOC v. Flambeau, Inc. No. 14-CV-638 (W.D. Wis. Dec. 30, 2015).
Week of January 11, 2016
“[T]he court concludes that the distinction [between discrimination based on gender stereotyping and discrimination based on sexual orientation] is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination. Thus, claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype.” District Judge Dean D. Pregerson in Videckis v. Pepperdine University, No. 2:15-cv-00298 (C.D. Cal. Dec. 15, 2015).
Week of January 4, 2016
“Today, EEOC also released two resource documents, in question-and-answer format, explaining federal laws prohibiting employment discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern … [These documents] assist employers and employees in understanding their rights and responsibilities under the federal laws enforced by EEOC. The documents encourage proactive communication among employers and employees to prevent and correct discrimination.” Statement by EEOC Chair Jenny R. Yang to address workplace discrimination against Muslim and Middle Eastern individuals (Dec. 23, 2015)
Week of December 28, 2015
“The rules at issue here prohibit the recording of conversations, phone calls, images or company meetings with a camera or recording device without prior approval by management. We find … that these rules would reasonably be construed by employees to prohibit Section 7 activity.” NLRB decision in Whole Foods Market, Inc., Cases 01-CA-096965, 13-CA-103533, 13-CA-103615 (Dec. 24, 2015).
Week of December 21, 2015
“We hold that a complaining employee’s position as a manager is an important part of the ‘context’ that the fact-finder must consider. A reasonable employer would understand many actions taken by a non-managerial employee differently than it would understand the same actions taken by a manager. But we decline to formulate or adopt a special bright-line rule to apply when considering whether a manager has ‘filed any complaint’ within the meaning of § 215(a)(3).” Circuit Judge Graber in Rosenfield v. GlobalTranz Enterprises, Inc., No. 13-15292 (9th Cir. Dec. 14, 2015) (addressing the Supreme Court’s Kasten “fair notice” test for deciding whether an employee – in this case an HR manager – had “filed any complaint” under the FLSA).
Week of December 14, 2015
“Having reviewed the parties’ briefing, the Court concludes that the PAGA waiver is unenforceable on public policy grounds. Furthermore, the arbitration agreement in the 2014 and 2015 contracts contain a non-severable PAGA waiver, rendering the entire arbitration agreement also unenforceable. For these reasons, the Court will certify an additional subclass of UberBlack, UberX, and UberSUV drivers who signed up to drive directly with Uber or an Uber subsidiary under their individual name and electronically accepted any contract with Uber or one of Uber’s subsidiaries which contain the notice and opt-out provisions previously ordered by this Court … even if they did not timely opt out of that contract’s arbitration agreement.” Judge Edward M. Chen in O’Connor v. Uber Technologies, Inc., 13 Civ. 03826-EMC (Dec. 9, 2015) (permitting Uber drivers who had not opted out of an arbitration agreement to join a class action).
Week of December 7, 2015
“This case—in which the Ninth Circuit refused to apply to arbitration agreements the same liberal policy toward severance that California courts routinely apply to ordinary contracts—is only the latest manifestation of California courts’ historic hostility to arbitration agreements. That hostility violates this Court’s precedents and Congress’s intent in enacting the FAA.” Amicus Brief of The Employers Group in MHN Government Services, Inc. v. Zaborowski, No. 14-1458 (Dec. 2, 2015)
Week of November 30, 2015
“Individuals with HIV infection should know that the ADA protects their rights in the workplace, including the right to reasonable accommodations. By clarifying these rights, and explaining to doctors how they can support their patients’ requests for reasonable accommodation, these publications demonstrate our commitment to ensuring that individuals with HIV infection have full access to employment.” EEOC Chair Jenny Yang (Dec. 1, 2015)
Week of November 23, 2015
“Most at-will employees have no right to employment in the first place, but not hiring them on their basis of their engagement in protected activities is nonetheless the ultimate adverse employment action, even under the strict, pre-Burlington Northern standard for what counts. Just as an at-will employer does not have to hire a given employee, an employer does not have to accept a given employee’s rescission. Failing to do so in either case because the employee has engaged in a protected activity is nonetheless an adverse employment action.” Circuit Judge Higginbotham in Porter v. Houma Terrebonne Housing Auth. Bd. Of Comms., No. 14-31090 (5th Cir. Nov. 17, 2015) (reversing summary judgment).
Week of November 16, 2015
“We look at [the NLRB’s Browning-Ferris Industries decision] as an opportunity for us to embrace the realities of the workplace, given all that has happened during the course of industrial evolution.” NLRB Chairman Mark Gaston Pearce (Nov. 12, 2015)
Week of November 9, 2015
“The Labor Department’s final rule on overtime eligibility isn’t likely to appear before late 2016, Solicitor of Labor Patricia Smith said at a panel discussion recently, according to several people who were in attendance.” New Rule for Overtime Pay Coming Later Than Anticipated, Lauren Weber (Wall Street Journal, Nov. 11, 2015)
Week of November 2, 2015
“The Board, reaffirming its D.R. Horton analysis, held that Murphy Oil violated Section 8(a)(1) of the NLRA by enforcing agreements that ‘requir[ed] . . . employees to agree to resolve all employment-related claims through individual arbitration.’ In doing so, of course, the Board disregarded this court’s contrary D.R. Horton ruling that such arbitration agreements are enforceable and not unlawful. Our decision was issued not quite two years ago; we will not repeat its analysis here. Murphy Oil committed no unfair labor practice by requiring employees to relinquish their right to pursue class or collective claims in all forums by signing the arbitration agreements at issue here.” Circuit Judge Southwick in Murphy Oil USA, Inc. v. N.L.R.B., No. 14-60800 (5th Cir. Oct. 26, 2015) (citations omitted), granting Murphy Oil’s petition and finding that Murphy Oil did not violate the NLRA by using individual arbitration agreements.
Week of October 26, 2015
“The inability to work for a particular supervisor is not a disability under the [California Fair Employment and Housing Act]. . . . A transfer to a new position under a new supervisor is an unreasonable accommodation for an employee’s inability to work for the old supervisor. . . . The claim for failure to accommodate is dismissed to the extent it is premised on [plaintiff’s] inability to work under [her supervisor’s] supervision and her request for a transfer.” Alsup v. U.S. Bancorp, 14 Civ. 01515-KJM-DAD (E.D. Ca. Oct. 19, 2015)
Week of October 19, 2015
“It would be fair to say that there are a lot of issues surrounding the franchise industry that were not at issue in the [Browning-Ferris Industries] case, and which the majority didn’t actually decide, and in my view, would weigh against joint employer status.” Former NLRB Member Harry I. Johnson III (Oct. 5, 2015)
Week of October 12, 2015
“Sixty-six years after passage of the California Equal Pay Act, many women still earn less than men doing the same or similar work. This bill is another step toward closing the persistent wage gap between men and women.” California Governor Jerry Brown’s statement regarding enactment of the State’s new Fair Pay Act (Oct. 6, 2015)
Week of October 5, 2015
“We are continuing to see a major shift in the law. Yet another court holds that discrimination against a transgender person is a case of sex discrimination and therefore a claim alleging such discrimination may be brought under Title VII of the Civil Rights Act of 1964. EEOC filed an amicus brief in this case, Dawson v. H&H Electric.” Facebook post by EEOC Commissioner Chai R. Feldblum (Sept. 24, 2015).
Week of September 28, 2015
“We . . . conclude the [New Jersey Law Against Discrimination] does not encompass allegations of discrimination based on weight, appearance, or sex appeal.” Judge Lihotz in Schiavo v. Marina District Development Co., Docket No. A-5983-12T4 (N.J. Sup. Ct., App. Div., Sep. 17, 2015) (affirming summary judgment in part against members of the famed BorgataBabes’ program).
Week of September 21, 2015
“We conclude that the policy favoring the right of self-defense is a public policy of sufficient clarity and weight to qualify as an exception to the at-will employment doctrine. But we limit the exception to situations where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm and the employee has no opportunity to withdraw.” Chief Justice Durrant in Ray v. Wal-Mart Stores, Inc., 2015 UT 83 (Utah Sept. 17, 2015).
Week of September 14, 2015
“Based on the evidence and given consideration to all the factors used to determine an employment relationship pursuant to [California’s Unemployment Insurance Code] and principles established by relevant precedent case law, it is concluded that there was in fact an employer/employee relationship between the claimant and the employer/appellant.” The California Unemployment Insurance Appeals Board in affirming an earlier agency determination that that Uber should have classified the claimant-driver as an employee instead of an independent contractor.
Week of September 7, 2015
“The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.” Judge Richard M. Berman in tossing Tom Brady’s four game suspension in National Football League Management Council v. National Football League Players Association, 15 Civ. 5916 (RMB)(JCF) (S.D.N.Y. Sept. 3, 2015).
Week of August 31, 2015
“Based on past experience and extensive work with the regulated community on other FLSA-related matters, we believe a 60-day comment period provides sufficient time for interested parties to submit substantial comment. Equally important, a comment period of this length, coupled with the feedback already received during the initial outreach sessions, will meet the goal described above of ensuring the Department has the level of insight from the public needed to produce a quality regulation. For these reasons we will not be extending the comment period.” David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, in a letter to Rep. John Kline (R-Minn), Chairman of the Committee on Education and the Workforce, refusing to extend the 60-day comment period on the proposed updated white-collar worker overtime regulations (August 31, 2015).
Week of August 24, 2015
“The Department’s decision to extend the FLSA’s protections to those employees is grounded in a reasonable interpretation of the statute and is neither arbitrary nor capricious. We therefore reverse the district court and remand for the grant of summary judgment to the Department.” Circuit Judge Srinivasan in Home Care Assoc. of Am. v. Weil, No.15-5018 (D.C. Cir. Aug. 21, 2015), upholding the DOL’s revisions narrowing the companionship and live-in domestic worker exemptions.
Week of August 17, 2015
“[Title VII] prohibits discrimination in hiring, firing, and “compensation, terms, conditions, or privileges of employment. A paid suspension is neither a refusal to hire nor a termination, and by design it does not change compensation. Nor does it effect a ‘serious and tangible’ alteration of the ‘terms, conditions, or privileges of employment,’ because ‘the terms and conditions of employment ordinarily include the possibility that an employee will be subject to an employer’s disciplinary policies in appropriate circumstances.’ We therefore agree with our sister courts that a suspension with pay, ‘without more,’ is not an adverse employment action under the substantive provision of Title VII.” Precia Jones v. Southeastern Pennsylvania Transportation Authority, No. 14-3814 (Aug. 12, 2015) (Hardiman, J.) (internal citations omitted).
Week of August 10, 2015
“[T]oday we’re introducing an unlimited leave policy for new moms and dads that allows them to take off as much time as they want during the first year after a child’s birth or adoption.” Netflix’s Chief Talent Officer, Tawni Cranz, in a blog entry unveiling Netflix’s new unlimited parental leave policy (08-04-15).
Week of August 3, 2015
“We hold that an average age difference of ten years or more between the plaintiff and the replacements will be presumptively substantial, whereas an age difference of less than ten years will be presumptively insubstantial.” Judge Gould in France v. Johnson, No. 13-15534 (9th Cir. Aug. 3, 2005).
Week of July 27, 2015
“Plaintiffs’ policy objections may very well be sincere and legitimately based, but in the end, this case comes down to a disagreement with choices made by the agency entrusted by Congress with broad discretion to implement the provisions of the NLRA and to craft appropriate procedures. Given the level of deference that applies in an APA case, particularly in the labor context, and for the additional reasons set forth in more detail below, the Court does not find grounds to overturn the Final Rule. The Board’s motion for summary judgment will be granted.” Judge Berman Jackson in Chamber of Commerce v. NLRB, No. 15-0009(ABJ) (D.D.C. July 29, 2015) (upholding NLRB’s Ambush Election rules).
Week of July 20, 2015
“In sum, most workers are employees under the FLSA’s broad definitions.” U.S. Department of Labor, Wage and Hour Division, Administrator’s Interpretation No. 2015-1, Issued by Administrator David Weil (July 15, 2015).
Week of July 13, 2015
“It is often better to acknowledge an obvious mistake than defend it. When the government acknowledges mistakes, it preserves public trust and confidence. It can start to repair the damage done by erroneously, indeed vindictively, attempting to sanction an innocent business. Rather than acknowledge its mistakes, however, the government here chose to defend the indefensible in an indefensible manner. As a result, we impose attorneys’ fees in favor of Gate Guard as a sanction for the government’s bad faith.” Circuit Judge Edith H. Jones in Gate Guard Services, L.P. v. Perez, No. 14-40585 (5th Cir. July 2, 2015) (sanctions warranted based on Department of Labor’s bad faith and “belligerent litigation tactics” in FLSA enforcement action).
Week of July 6, 2015
“The [primary beneficiary] approach we adopt also reflects a central feature of the modern internship—the relationship between the internship and the intern’s formal education. The purpose of a bona-fide internship is to integrate classroom learning with practical skill development in a real-world setting, and, unlike the brakemen at issue in Portland Terminal, all of the plaintiffs were enrolled in or had recently completed a formal course of post-secondary education. By focusing on the educational aspects of the internship, our approach better reflects the role of internships in today’s economy than the DOL factors, which were derived from a 68-year old Supreme Court decision that dealt with a single training course offered to prospective railroad brakemen.” Glatt v. Fox Searchlight Pictures, Inc., 13-4478-cv(L) (2d Cir. July 2, 2015) (Walker Jr., J.) (adopting primary beneficiary test and finding that unpaid intern class should not have been certified and remanding for further proceedings).
Week of June 29, 2015
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.” Chief Justice Roberts in King v. Burwell, No. 14-114 (June 25, 2015).
Week of June 22, 2015
“In light of the above, Plaintiff was Defendants’ employee. Therefore, the Labor Commissioner has jurisdiction to adjudicate the instant matter.” Stephanie Barrett, Hearing Officer of the California Labor Commissioner in Berwick v. Uber Technologies, Inc. (June 3, 2015) (finding that Uber misclassified plaintiff driver as an independent contractor).
Week of June 15, 2015
“The supreme court holds that under the plain language of section 24-34-402.5, 13 C.R.S. (2014), Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute. We therefore affirm the court of appeals’ opinion.” Coats v. Dish Network, No.13SC394, 2015 CO 44 (June 15, 2015) (Colorado Supreme Court en banc ruling finding that employers may terminate employees for using medical marijuana even if the employee is off duty and complying with state law).
Week of June 8, 2015
“I’ll be issuing an administrator interpretation specifically about our view of what is a legitimate independent contractor.” USDOL Wage and Hour Division Administrator David Weil speaking at a New York University School of Law labor and employment conference (June 5, 2015).
Week of June 1, 2015
“Core principle: All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” From OSHA’s “A Guide to Restroom Access for Transgender Workers,” which identifies best practices for transgender bathroom access (June 1, 2015)
Week of May 25, 2015
“If we try to do everything, we can’t do anything. That’s why we have the strategic enforcement plan.” Peggy Mastroianni, EEOC Legal Counsel at Minnesota CLE’s Upper Midwest Employment Law Institute (May 20, 2015)
Week of May 18, 2015
“[W]e now vacate the judgment of the district court and remand for further proceedings on [plaintiff’s]. In so doing, we underscore the Supreme Court’s pronouncement in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), that an isolated incident of harassment, if extremely serious, can create a hostile work environment. We also recognize that an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone.” Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (May 7, 2015) (King, J.) (vacating summary judgment of hostile work environment and retaliation claims)
Week of May 11, 2015
“Despite Wal-Mart’s reshaping of the class action landscape, we hold that the district court has for a second time erred in refusing to certify the workers’ class, where (1) statistics indicate that promotions at Nucor depended in part on whether an individual was black or white; (2) substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments; and (3) there is also significant evidence that those promotions decisions were made in the context of a racially hostile work environment. Against that backdrop, the district court fundamentally misapprehended the reach of Wal-Mart and its application to the workers’ promotions class.” Brown v. Nucor Corp., No. 13-1779 (4th Cir. May 11, 2015) (Gregory, J.) (remanding with instructions to certify a class)
Week of May 4, 2015
“[W]e hold that an employer’s forbearance in exercising its right to terminate an at-will employee constitutes lawful consideration for a restrictive covenant. Although, theoretically, an employer could terminate an employee’s employment shortly after having the employee sign a restrictive covenant, the employee would then be protected by other contract formation principles such as fraudulent inducement or good faith and fair dealing, so that the restrictive covenant could not be enforced.” Runzheimer Int’l, Ltd. v. Friedlen, No. 2013AP1392 (Wis. Apr. 30, 2015) (Prosser, J.).
Week of April 27, 2015
“[T]he EEOC appears to seek a more expansive interpretation of sex under Title VII that would include transgender persons as a protected class. There is no Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgender status is a protected class under Title VII. . . . Even though transgender/transsexual status is currently not a protected class under Title VII, Title VII nevertheless ‘protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.’” District Judge Sean F. Cox in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 14-13710 (E.D. Mich. Apr. 21, 2015) (denying the funeral home’s motion to dismiss the complaint) (citations omitted).
Week of April 20, 2015
“[S]haring information is precisely why the subjects here or anyone else on LinkedIn provides their employment histories to LinkedIn.” Magistrate Judge Paul Grewal in Sweet v. LinkedIn Corp., 14 Civ. 04531(PSG) (N.D. Cal. Apr. 14, 2015) (one of the many reasons, the judge said, that LinkedIn’s “Reference Searches” do not constitute “consumer reports” under the Fair Credit Reporting Act).
Week of April 13, 2015
“The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or job schedule—of their choosing. . . . [A] Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week. Ford denied her request, deeming regular and predictable on-site attendance essential to [her] highly interactive job. Ford’s papers and practices—and [her] three past telecommuting failures—backed up its business judgment.” Judge McKeague in EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 10 2015) – an en banc ruling that reversed a previous split decision from the court and affirmed the district court’s granting of Ford’s summary judgment on a telecommuting failure to accommodate claim.
Week of April 6, 2015
“A lot of progress has been made around the issue of workplace harassment, but we know it remains a persistent problem. Complaints of harassment span all industries, include many of our most vulnerable workers, and are included in 30% of the charges that we receive. . . . Through creation of this Select Task Force, I hope we will reach more workers and more in the employer community so we can understand the challenges they face and promote the practices we’ve seen work. I really look forward to the results.” Jenny R. Yang, Chair of the EEOC, in announcing the membership of the EEOC’s Select Task Force on the Study of Harassment in the Workplace (EEOC Press Release, Mar. 30, 2015)
Week of March 30, 2015
“We believe paid time off is an important benefit for workers in our economy. Today we’re announcing that over the next year we will make changes to ensure that a wide variety of suppliers that do business with Microsoft in the U.S. provide their employees who handle our work with at least 15 days of paid leave each year.” Microsoft’s GC, Brad Smith, in a blog post entitled “Paid time off matters: Ensuring minimum standards for the people at our suppliers” (Microsoft on the Issues Blog, March 26, 2015)
Week of March 23, 2015
“Simply tendering a check and having the employee cash that check does not constitute an ‘agreement’ to waive claims; an agreement must exist independently of payment. Indeed, an employee may waive his rights to sue even if he does not cash a settlement check, provided that he signs a waiver of any legal claims and receives a valid check from the employer. . . . This process must also be ‘supervise[d]’ by the DOL.” Beauford v. ActionLink, LLC, No. 13-3265 (8th Cir. Mar. 20, 2015) (J., Melloy) (internal citations omitted) (reversing summary judgment for ActionLink because the release language on the checks was insufficient to notify employees of the consequences of cashing the checks, and the employees therefore, did not waive their FLSA claims by cashing the checks).
Week of March 16, 2015
“A person need not live as a hermit in order to be ‘substantially limited’ in interacting with others. . . . Thus, the fact that [the Plaintiff] may have endured social situations does not per se preclude a finding that she had social anxiety disorder. Rather, [she] need only show she endured these situations “with intense anxiety.” Jacobs v. N.C. Administrative Office of the Courts, No. 13-2212 (4th Cir. Mar. 12, 2015) (J., Floyd) (reversing summary judgment against former employee and finding that an issue of fact existed over whether the plaintiff’was substantially limited in her ability to interact with others and thus disabled within the meaning of the ADA).
Week of March 9, 2015
“[The Plaintiff] cites no case holding that an employer has a duty to guess an employee’s disability and force that employee to take leave, and we decline to so hold here.” Circuit Judge Gruender in Walz v. Ameriprise Financial, Inc., No. 14-2495 (8th Cir. Mar. 9, 2015) (affirming summary judgment where employee did not adequately disclose her bipolar disorder nor request a reasonable accommodation).
Week of March 2, 2015
“The justification defense against a claim of tortious interference with contract may be satisfied by a defendant’s good-faith reliance on advice of outside counsel, provided that the legal advice is obtained through a reasonable inquiry.” Sysdyne Corporation v. Rousslang, A13-0898 (Minn. Sup. Ct. Mar. 4, 2015) (Page, J.)
Week of February 23, 2015
“[I]t troubles me that the [EEOC] continues to proffer expert testimony from a witness whose work has been roundly rejected in our sister circuits for similar deficiencies to those we observe here. It is my hope that the agency will reconsider pursuing a course that does not serve it or the public interest well.” Circuit Judge Agee in a concurring opinion in EEOC v. Freeman, No. 13-2365 (4th Cir. Feb. 20, 2015) (affirming a district court decision that excluded expert testimony proffered by the EEOC to establish the alleged disparate impact of the employer’s background check policies).
Week of February 16, 2015
“We’re looking very actively at [the predictable scheduling] issue now. It’s popping up on our radar screen. . . . It does raise big work life balance issues[,] and [i]t’s an open question [as to whether the FLSA covers it].” Wage and Hour Administrator David Weil in an interview with Bloomberg BNA as highlighted in the article “WHD Prepares to Issue White-Collar Rule, Deal With Scuttling of Home Care Rule,” by Gayle Cinquegrani (BNA Daily Labor Report, Special Report, Jan. 26, 2015) (subscription required).
Week of February 9, 2015
“Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent.” February 4, 2015 EEOC Press Release in summarizing its Fiscal Year 2014 Enforcement and Litigation Data.
Week of February 2, 2015
“We interpret collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy.” — Justice Thomas, in a unanimous opinion in M&G Polymers USA, LLC v. Tackett, No. 13-1010 (Jan. 26, 2015) (finding that retirees did not have a right to lifetime contributions to the cost of their health care benefits because the applicable CBA providing for the contributions expired and under ERISA, employers are free at any time and for any reason to adopt, modify or terminate welfare plans).
Week of January 26, 2015
“By the authority vested in me as President by the Constitution and the laws of the United States of America, and to further build on these important goals and the work currently underway by the Office of Personnel Management (OPM) and other agencies to review existing personnel policies, I hereby direct as follows: … Agencies shall ensure that, to the extent permitted by law, their policies offer 240 hours of advanced sick leave, at the request of an employee and in appropriate circumstances, in connection with the birth or adoption of a child or for other sick leave eligible uses.” — Memorandum For The Heads Of Executive Departments And Agencies, White House Office of the Press Secretary (Jan. 15, 2015).
Week of January 19, 2015
“Millions of American families each day struggle financially to care for their loved ones who are either too elderly or infirm to care for themselves. Congress is now, and has been, keenly aware of that struggle for many decades. Indeed, as the baby-boomer generation gets older, that struggle will be shared by an ever-increasing number of families. The exemption Congress has provided third-party employers and individual families with respect to minimum and overtime wages has been, and is, a central component of Congress’s effort to insure that as many of those families as possible will be able to survive that struggle. While the Department of Labor’s concern about the wages of home care providers is understandable, Congress is the appropriate forum in which to debate and weigh the competing financial interests in this very complex issue affecting so many families. Redefining a 40-year-old exemption out of existence may be satisfyingly efficient to the Department of Labor, but it strikes at the heart of the balance of power our Founding Fathers intended to rest in the hands of those who must face the electorate on a regular basis.” — Judge Leon vacating another portion of the DOL’s proposed revision to the companionship exemption regulations in Home Care Association of America v. Wieil, 14 Civ. 967(RJL) (Jan. 14, 2015).
Week of January 12, 2015
“An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.” — Supreme Court Justice Alito, dissenting from a denial of certiorari in Kalamazoo County Road Commission v. Deleon, No. 13-1516 (Jan. 12, 2015).
Week of January 5, 2015
“Here, Congress has directed the Department of Labor to define statutory terms, and then include ‘any employee’ who provides services according to those definitions within the scope of the exemptions. The focus is on the type of the services provided, not who pays the check. As such, Congress has clearly spoken on this issue, and the Department’s new, conflicting rule therefore cannot survive.” — Home Care Association of America v. Weil, 14 civ. 967(RJL) (D. D.C. Dec. 22, 2014) (vacating the DOL’s revised regulation that would have essentially eliminated the companion and live-in domestic service worker exemptions).
Week of December 29, 2014
“2. WHEN DO THE EMPLOYER SHARED RESPONSIBILITY PROVISIONS GO INTO EFFECT? The Employer Shared Responsibility provisions generally are not effective until Jan. 1, 2015, meaning that no Employer Shared Responsibility payments will be assessed for 2014. See Notice 2013‑45. Employers will use information about the number of employees they employ and their hours of service during 2014 to determine whether they employ enough employees to be an applicable large employer for 2015. See question 4 for more information on determining whether an employer is an applicable large employer and questions 29 through 39 for more information about transition relief for 2015.” — Q&A on Employer Shared Responsibility Provisions Under the ACA.
Week of December 22, 2014
“[P]laintiff’s decision to knowingly flaunt the work requirement that he report to work fifteen minutes before his shift started was not protected activity but instead was insubordination. Plaintiff has provided no support for his argument that knowing refusal to report on time for work is protected activity. . . . [The FLSA’s anti-retaliation provision] states that it is unlawful to discriminate against anyone who filed a complaint or instituted a FLSA related proceeding, or who testified in a proceeding or who is on an industry committee. The statutory language, therefore, protects against discrimination caused by plaintiff’s complaints. The language does not protect a police officer who does not report on time for work because he is upset he is not paid for the time. Quite simply, the FLSA does not prohibit an employer from appropriately disciplining an employee who is insubordinate. If plaintiff’s argument is accepted, an employer may be liable for retaliation every time it disciplined its employee. This would create chaos in the workplace.” Magistrate Judge Joel Schneider in Zielinski v. The City of Wildwood, 12 Civ. 7195(JS) (D. Md. Dec. 10, 2014), granting the City’s summary judgment motion on the plaintiff’s FLSA retaliation claim.
Week of December 15, 2014
“The Department will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).” U.S. Department of Justice Attorney General Memorandum, dated December 15, 2014.
Week of December 8, 2014
“[L]ess than a quarter of [Chief HR Officers surveyed] indicated that their wellness program has significantly reduced costs at the company.” 2014 Chief HR Officer Data Survey (Consero Group, Oct. 2014).
Week of December 1, 2014
“The U.S. Department of Labor today awarded $10,225,183 to 19 states to implement or improve worker misclassification detection and enforcement initiatives in unemployment insurance programs. . . . While several states have existing programs designed to reduce worker misclassification, this is the first year that the Labor Department has awarded grants dedicated to this effort.” USDOL Press Release (Sept. 15, 2014).
Week of November 24, 2014
“Two very different outcomes resulted in these cases — in one, the court granted summary judgment to the plaintiffs; in the other, the court denied summary judgment . . . . These very different outcomes demonstrate the uncertainty that the parties face. The proposed settlement alleviates this uncertainty.” Two former interns in Ballinger v. Advanced Media Publications, Inc., No. 13 Civ. 4036(HP) (S.D.N.Y. Nov. 13, 2014), seeking preliminary approval of a class action settlement with Conde Nast to settle all claims for just shy of $6 million.
Week of November 17, 2014
“While the jury is still out about whether workplace wellness programs improve health, the programs have great potential. . . . Our goal was to evaluate what motivates people to participate in these programs and what strategies companies and insurers can use to get everyone involved. Our data show that financial incentives clearly work to motivate participation in a health coach program.” Jason Block, MD, TOS Member and Assistant Professor at Harvard Medical School’s Department of Population Medicine explaining the results of his study, “Do Financial Incentives Promote Uptake of Telephonic Health Coaching Within a Health Plan?” (Nov. 7, 2014)
Week of November 10, 2014
“Ergo, the FLSA does not expressly preclude defendants from offsetting plaintiffs unpaid donning and doffing and shift relief time with the paid meal period time.” Judge Munley in entering summary judgment for defendants on plaintiffs’ FLSA claims in Smiley v. E.I. Du Pont De Nemours & Co. (M.D. Pa. Nov. 5, 2014).
Week of November 3, 2014
“The Court finds a genuine issue of material fact exists regarding whether effective verbal communication is an essential function of the HR Analyst position. Although Defendants have undoubtedly established that some degree of communication is necessary to carry out the essential functions of the HR Analyst position, this Court is not convinced verbal communication is the only means by which employees can effectively communicate. Rather, as Plaintiff contends, verbal communication might merely be considered a method by which the other essential functions explicitly listed in the job description are performed. On the other hand, if the ability to effectively speak is necessary to carry out the essential functions of the HR Analyst position, then a jury may find that oral communication is an implicit part of those same essential functions and thus an essential function in itself. Accordingly, because a reasonable jury could find that effective verbal communication is not an essential function of the HR Analyst position, this Court declines to grant Defendants’ motion for summary judgment on this issue.” Judge Thomas O. Rice of the Eastern District of Washington in Carlson v. City of Spokane (Oct. 20, 2014).
Week of October 27, 2014
” . . . there’s no need for employers to panic. No Ebola pandemic has been or is likely to be declared. Nevertheless, all employers, even small business owners, have a legal obligation to maintain a safe workplace, and taking reasonable steps to guard against the risk of dangerous infectious diseases in the workplace is part of that obligation. At the same time, various laws require employers to respect employee privacy, often restricting employers from asking about medical conditions and mandating confidentiality of medical information. Balancing obligations under these various laws is critical,” from “Small business advice: How to prepare your company for an outbreak like Ebola,” by Katherine Parker, Washington Post “On Small Business” guest blogger (Oct. 21, 2014).
Week of October 20, 2014
“The Court holds that the rejected offer of judgment moots the lawsuit only when the district court has entered that judgment—or, to put it differently, that the judgment moots the lawsuit, not the offer. Consequently, when (as in this case) new collective action plaintiffs join the lawsuit before entry of judgment, the case is not moot. Accordingly, the Court denies the [Defendants’ motion to dismiss].” Judge Raymond J. Dearie in Anjum v. J.C. Penny (E.D.N.Y. Oct. 9, 2014), refusing to find that a Rule 68 Offer of Judgment by itself moots a collective action lawsuit.
Week of October 13, 2014
“Today I’m signing a sweeping expansion of the city’s living wage standard. It’s time to go farther. Effective immediately, we will raise wages through the living wage standard to $13.13 per hour.” Mayor de Blasio in signing an Executive Order expanding the reach of the New York City’s living wage law (Sept. 30, 2014).
Week of October 6, 2014
“We are months away from a proposed regulation.” U.S. Solicitor of Labor M. Patricia Smith confirming that the DOL will not release its proposed revisions to the overtime exemption regulations by November 2014.
Week of September 29, 2014
“Looking at social media as part of the screening of applicants puts employers in a vulnerable position. Even if they just take a glance at it, they are immediately presented with a plethora of information about protected statuses.” EEOC Assistant Legal Counsel Carol Miaskoff at a September 15, 2014 Federal Trade Commission public workshop entitled “Big Data: A Tool for Inclusion or Exclusion?” where she addressed the potential risks employers take by using “big data” in the workplace.
Week of September 22, 2014
This week, playing the role of Quote of the Week, will be the Chart of the Week below, courtesy of On the Economy Blog.
Week of September 15, 2014
“An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).” California’s new requirement that employers add bullying as a component of their statutorily-required sexual harassment training and education programs.
Week of September 8, 2014
“41 percent of American workers do not plan to use all their paid time off in 2014, even though it is part of their compensation.” From “Overwhelmed America: Why Don’t We Use Our Earned Leave?” presented by the U.S Travel Association (August 2014)
Week of September 1, 2014
“So, what will the growing popularity of fantasy football cost the nation’s employers in terms of lost productivity? More than $14 billion, according to one estimate.” From Challenger, Gray & Christmas’s annual fantasy football report.
Week of August 25, 2014
“It is the purpose and intent in enacting this Division that San Diego workers be guaranteed the right to take earned sick leave. Most employees will at some time during each year need limited time off from work to take care of their own health needs or the health needs of members of their families. Guaranteeing employees earned sick leave will reduce recovery time from illnesses, promote the use of regular medical providers rather than hospital emergency departments, and reduce the likelihood of workers spreading illness to other members of the workforce and to the public.” From the “Purpose and Intent” section of San Diego’s new paid sick leave law. The City Council recently overrode the Mayor’s veto of the law and it will go into effect in September.
Week of August 18, 2014
“Because a statute is presumed, in the absence of clear congressional intent to the contrary, to apply only domestically, and because there is no evidence that the [Dodd-Frank Act’s] antiretaliation provision is intended to have extraterritorial reach, we conclude that that provision does not apply extraterritorially. We furthermore conclude that because [the plaintiff’s] complaint alleges that he was a non‐citizen employed abroad by a foreign company, and that all events allegedly giving rise to liability occurred outside the United States, applying the antiretaliation provision to these facts would constitute an extraterritorial application of the statute.” Second Circuit Court of Appeals Judge Gerard Lynch in Liu Meng-Lin v. Siemens AG, affirming a prior dismissal of a Dodd-Frank whistleblower claim (August 14, 2014).
Week of August 11, 2014
“[T]he Court cannot conclude that the instant settlement falls within the range of reasonableness. As this Court stated in its summary judgment order, there is ample evidence of an overarching conspiracy between the seven Defendants, including ‘[t]he similarities in the various agreements, the small number of intertwining high-level executives who entered into and enforced the agreements, Defendants’ knowledge about the other agreements, the sharing and benchmarking of confidential compensation information among Defendants and even between firms that did not have bilateral anti-solicitation agreements, along with Defendants’ expansion and attempted expansion of the anti-solicitation agreements.’ . . . . Moreover, as discussed above and in this Court’s class certification order, the evidence of Defendants’ rigid wage structures and internal equity concerns, along with statements from Defendants’ own executives, are likely to prove compelling in establishing the impact of the anti-solicitation agreements: a Class-wide depression of wages.” Judge Koh in In re High-Tech Employee Antitrust Litigation denying Plaintiffs’ Motion for Preliminary Approval of Settlements (August 8, 2014).
Week of August 4, 2014
“[The Anti-Bullying Bill], while well-intentioned, contains a number of poorly defined and unworkable provisions that will inevitably lead to a dramatic increase in unwarranted workplace-related litigation which, in turn, will materially disrupt workplace supervision and hinder productivity within state agencies. The bill also attempts to legislate politeness, manners and the interpersonal relationships of co-workers. Ultimately, it would head us in a direction toward extending these onerous and unnecessary directives to our private sector business community, making our state an undesirable destination for expansion and economic development.” New Hampshire Governor Maggie Hassan in vetoing a bill designed to protect state employees from an abusive work environment.
Week of July 28, 2014
“Employers that follow the law simply cannot compete with those that would line their own pockets by taking the rightful wages of their employees. Both workers and law-abiding businesses lose in cases of wage theft. It is unacceptable and will not be tolerated.” NYSDOL Commissioner Peter M. Rivera on the Department’s recovery and disbursement of $16.4 million to workers through the first six months of this year – a 16 percent increase over 2013 and a 35 percent increase over 2012 during the same timeframe.
Week of July 21, 2014
“[W]e’re going to prohibit all companies that receive a contract from the federal government from discriminating against their LGBT employees. America’s federal contracts should not subsidize discrimination against the American people. . . . Currently, 18 states have already banned workplace discrimination based on sexual orientation and gender identity. And over 200 cities and localities have done the same. . . . Equality in the workplace is not only the right thing to do, it turns out to be good business. That’s why a majority of Fortune 500 companies already have nondiscrimination policies in place. It is not just about doing the right thing — it’s also about attracting and retaining the best talent.” Remarks by the President at Signing of Executive Order on LGBT Workplace Discrimination.
Week of July 14, 2014
“I applaud the overwhelming majority of lawmakers from both parties who came together on behalf of America’s workers to pass the Workforce Innovation and Opportunity Act of 2014. This bipartisan compromise will help workers, including workers with disabilities, access employment, education, job-driven training, and support services that give them the chance to advance their careers and secure the good jobs of the future. Today’s vote helps ensure that our workers can earn the skills employers are looking for right now and that American businesses have the talent pool it takes to compete and win in our global economy. I look forward to signing it into law and hope Congress will continue to come together to make progress for America’s working families.” Statement by the President on the Passage of the Workforce Innovation and Opportunity Act of 2014 (an actual employment-related law passed by congress).
Week of July 7, 2014
Week of June 30, 2014
“ESOP fiduciaries are subject to the same duty of prudence that applies to ERISA fiduciaries in general, except that they need not diversify the fund’s assets.” Supreme Court Justice Breyer in Fifth Third Bancorp v. Dudenhoeffer (June 25, 2014), holding that Employee Stock Ownership Plan fiduciary is not entitled to a defense-friendly presumption of prudence when that fiduciary’s decision to buy or hold employer stock is challenged in court.
Week of June 23, 2014
“Although we have held that an employee may introduce evidence of harassment which he is not personally aware to prove that his employer is responsible for the harassment or to rebut an affirmative defense . . . our Court has not ruled that this kind of “me too” evidence can prove that a work environment is objectively hostile. We now hold that an employee alleging a hostile work environment cannot complain about conduct of which he was oblivious for the purpose of proving that his work environment was objectively hostile.” 11th Circuit Court of Appeals in Adams v. Austal, U.S.A L.L.C. (June 17, 2014).
Week of June 16, 2014
“In sum, it is clear that Hernandez was fired because of her “misconduct” in taking the chips without paying for them. Under the Ninth Circuit case law, misconduct resulting from a disability has to be considered as part of Hernandez’s disability and creates a question of fact as to whether Hernandez’s disability was causally related to her termination. In other words, whether or not Hernandez’s disability was, in fact, a cause of her misconduct is a question of fact for the jury. Similarly, whether Walgreens should have been required to “accommodate” her stealing as a “reasonable” accommodation is for the jury to determine.” Judge William H. Orrick in EEOC v. Walgreens (N.D. Cal., Apr. 11, 2014), denying Walgreen’s motion for summary judgment on an ADA reasonable accommodation claim.
Week of June 9, 2014
“Much has changed in our social norms, but in many of the cases we continue to see, there are often these notions about women’s place at home, in society, that underscore some of the decisions that we see in workplaces. We’ve brought many cases at the EEOC today that involve women who are excluded entirely from certain occupations that have been traditionally male.” EEOC Vice Chairwoman Jenny Yang at June 5, 2014 Conference at NYU commenting on the EEOC’s continuing priorities in combatting discrimination.
Week of June 2, 2014
“A trial plan that relies on statistical sampling must be developed with expert input and must afford the defendant an opportunity to impeach the model or otherwise show its liability is reduced.” California Supreme Court Justice Corrigan in affirming an appellate court decision reversing a class-wide judgment that USB has misclassified each of its loan officers in Duran v. US Nat’l Bank Assoc..
Week of May 26, 2014
“The country’s election authority said a preliminary tally showed 76% voted against the proposal and 24% voted for it.” CNN Money’s Mark Thompson writing about the resounding defeat of a proposal to raise Switzerland’s minimum wage to $25 per hour from Swiss Voters Reject $25 Minimum Wage (May 18, 2014)
Week of May 19, 2014
“Imagine a CEO explaining to his employees that they’re losing their jobs or having to move … because he’s unwilling to make no more than 100 times what they make.” It’s California’s Chance to Strike a Blow for Workers’ Rights, by Harold Meyerson, Los Angeles Times (May 20, 2014), on a bill that would raise corporate tax rates on companies whose CEO makes more than 100 times the wages of their median employee.
Week of May 12, 2014
“Providing 12 weeks of leave for many categories of employees continues to become the norm in the U.S.” but “[t]he lengths of leave for new fathers, adoptive parents and employees caring for seriously ill family members have declined as has disability pay.” From the Family and Work Institute’s 2014 National Study of Employers.
Week of May 5, 2014
“If an employee has not been constructively discharged, her duty to mitigate damages may require her to continue working for her discriminatory employer.” However, “the Court holds that Title VII, the NYSHRL, and the NYCHRL do not categorically bar post-resignation backpay for plaintiffs who have not been constructively discharged.” Chief Judge Preska in Patricot v. Bloomberg LP, in finding that the former Bloomberg employee did have a duty to mitigate under the circumstances here and granting Bloomberg’s motion for summary judgment dismissing her claim for backpay.
Week of April 28, 2014
“Northwestern University’s Request for Review of the Regional Director’s Decision and Direction of Election is granted as it raises substantial issues warranting review.” NLRB in its April 24, 2014 Order granting Northwestern’s Request for Review of a Regional Director’s finding that the University’s grant-in-aid football players were employees under the National Labor Relations Act.
Week of April 21, 2014
“[The New York City Human Rights Law] is needed to ensure that New Yorkers are fully protected from discrimination. This legislation will clarify that interns – paid or unpaid – are entitled to he full protections guaranteed to employees under the city’s human rights law. It addresses a recent federal court decision that a woman in our city was not protected from sexual workplace harassment solely because she was an intern. This is unacceptable. The human rights law is not focused on an individual’s title. The point of our human rights law is to keep workplaces free of impermissible discrimination.” NYC Mayor Bill de Blasio commenting at a signing ceremony of a bill extending the City Human Rights Law’s protections to interns.
Week of April 14, 2014
“Labor and employment litigation plagued corporate counsel to a degree unmatched by any other type of legal action last year, according to a litigation trends survey released Tuesday. Falling in line with an overall uptick in labor and employment suits compared to 2012, 48 percent of the 401 general counsel and in-house litigators at major U.S. and international companies surveyed by Norton Rose Fulbright LLP reported that such cases were among the three most common types of litigation for their shops in 2013.” Employment Suits Still Bossing GCs Around, by Alex Lawson, Law360 (Apr. 15, 2014).
Week of April 7, 2014
“This case presents a challenge to the facial validity of three paragraphs in the [Hospital’s] Values and Standards of Behavior Policy. In relevant part, paragraph 11 states that employees will not make ‘negative comments about our fellow team members,’ including coworkers and managers; paragraph 16 states that employees will ‘represent [the Respondent] in the community in a positive and professional manner in every opportunity;’ and paragraph 21 states that employees ‘will not engage in or listen to negativity or gossip.’ . . . We agree with the [Administrative Law Judge] that the prohibitions of “negative comments” and “negativity” in paragraphs 11 and 21, respectively, are unlawful [under the National Labor Relations Act].” The NLRB in Hills and Dales General Hospital (Case 07-CA-053556) (Apr. 1, 2014) once again striking down portions of an employer’s employee conduct policy under the NLRA.
Week of March 31, 2014
“During the course of its work, however, this Grand Jury saw how vulnerable the system is to fraud by employers scheming to reduce their workers’ compensation insurance premiums. The incidents of premium fraud misconduct we examined gave the wrongdoers an improper competitive advantage over all law-abiding businesses, divested vulnerable workers of important protections and benefits, and deprived New York State and New York City of substantial revenue.” Report of the Grand Jury of the Supreme Court State of New York, First Judicial District, empanelled at the request of Manhattan District Attorney Cyrus R. Vance, Jr., and which concluded that workers’ compensation premium fraud costs New York hundreds of millions of dollars each year.
Week of March 24, 2014
“After examining the FLSA’s text, legislative history, purposes, and [various] Supreme Court decisions, we discern no ‘contrary congressional command’ that precludes the enforcement of plaintiffs’ Arbitration Agreements and their collective action waivers.” Justice Frank M. Hull in Walthour v. Chipio Windshield Repair, LLC, Docket No. 13-11309 (11th Cir., Mar. 21, 2014), the latest Court of Appeals’ decision to reject the argument that the Fair Labor Standards Act provides a non-waivable, substantive right to bring a collective action.
Week of March 17, 2014
“The default impulse nowadays is to ask any new recruit to sign a noncompete agreement paired with a robust nondisclosure agreement. This basically forces the potential hire, in advance, to sign over all future knowledge, experience and connections he or she might gain during employment. It may be counterintuitive to learn that tying down your new recruits and binding them to your firm can be quite destructive.” Why Noncompetes May Give You the Least Desirable Employees, by Orly Lobel, Wall Street Journal (Jan. 23, 2014) (Subscription Required)
Week of March 10, 2014
“We hold, based on the text of §1514A, the mischief to which Congress was responding, and earlier legislation Congress drew upon, that the provision shelters employees of private contractors and subcontractors, just as it shelters employees of the public company served by the contractors and subcontractors.” Justice Ginsburg in Lawson v. FMR, LLC, Supreme Court Docket No. 12-3 (Mar. 4, 2014) on court’s interpretation of breadth of Sarbanes-Oxley and Dodd-Frank anti-retaliation provisions.
Week of March 3, 2014
“I have not heard of one example in Arizona where a business owner’s religious liberty has been violated.” Governor Jan Brewer at a February 26, 2014 press conference announcing her veto of Arizona SB 1062.
Week of February 24, 2014
“If you were a pizza deliveryman how would you benefit from scissors?”
From Glassdoor’s round-up of the 25 Oddball Interview Questions for 2014
Week of February 17, 2014
“We nevertheless conclude that the Florida choice-of-law provision in the Agreement is unenforceable because it is ‘truly obnoxious’ to New York Public Policy.”
New York’s 4th Judicial Department in Brown & Brown, Inc. v. Johnson, 2014 NY Slip. Op. 00822 (Feb. 7, 2014)