Welcome to July! As we head deeper into the summer, the employment law world continues to heat up (and we’re not just talking about the record temperatures across the country!). We have rounded up the most recent developments impacting employers here:

The U.S. Supreme Court closed out an epic 2017 term (pun slightly intended) with the issuance of Epic Systems Corp. v. Lewis, in which it held that contractual waivers of class arbitration in employment agreements are enforceable. Our colleague Gil Samberg also wrote about the decision over on our sister blog, ADR: Advice from the Trenches. The Court also handed down a significant decision in Janus v. AFSCME, holding that public employees who are not union members cannot be required to pay agency fees to a union even if that union represents them for purposes of collective bargaining. Last but certainly not least, Justice Anthony Kennedy announced his retirement from the bench, effective July 31.

At the state level, both New York and Maryland have recently enacted sweeping legislation in response to the #MeToo movement, which we wrote about here and here. New York employers must ensure that their employment agreements are in compliance with the new law by July 11, 2018. On the heels of the New York Paid Family Leave law, which took effect on January 1, 2018, Massachusetts Governor Charlie Baker just signed into law a new paid family and medical leave program that is even more generous than the New York law. That law also increases the state minimum wage and eliminates premium pay for Sundays and certain holidays. We outline the parameters of the new law here.

In New York City, the bill requiring employers to grant two temporary schedule changes per year takes effect on July 18th. Finally, in response to the bevy of leave laws that have recently been passed throughout the country, we will be debuting a new blog series addressing issues arising from and relating to leaves of absence. The series will include posts on navigating the ADA, performance and benefits issues for employees on leave, and the interplay between federal and state-specific leave laws. Stay tuned for more and as always, do not hesitate to contact your Mintz Levin ELB team with any questions about compliance with these laws.

Wishing our readers a happy and restful 4th of July!!

In a landmark opinion on an important issue to employers, the Supreme Court held yesterday that employers can enforce class action waivers in arbitration agreements – leaving employers nationwide asking “what does this decision mean for us?”  This post aims to answer that question.

Continue Reading Arbitration Provisions with Class Action Waivers Are Enforceable…Now What? A Guide for Human Resources Professionals and In-House Counsel on the Practical Implications of this “Epic” Decision

Trick or Treat! This month’s Bubbler is a cauldron full of hot new developments in employment law …  the NYC Salary History law is now in effect … California followed suit and its salary history law will take effect on January 1, 2018, just after Delaware and just before Massachusetts … Employers in New York are preparing to implement the new Paid Family Leave law, joining California, New Jersey and Rhode Island as the fourth state to provide this paid leave through employee-paid payroll taxes … The Supreme Court heard oral arguments in the class action waiver case … the NYC Council passed a bill to expand the Earned Sick Time Act … and the Third Circuit cited to a Harry Potter novel in an FLSA decision.

 

What is happening in employment law? We will be providing you with quick employment law updates on a bi-monthly basis in a new series called “The Bubbler.”  It will let you know what’s what and who’s who in the continually-evolving, ever-important, hard-to-keep-track-of employment law world. The Bubbler delivers current events and other important news to our readers without the time or the interest to piece through the recent legislation, the ever-growing release of regulations and other agency guidance and the lengthy court decisions. We’re your colleagues at the water cooler who tell you just enough to pique your interest (but then provide links to satisfy your curiosity). Enjoy!

Continue Reading The Bubbler: September 6, 2017

The Supreme Court is set to hear oral argument in October on whether class and collective action waivers are enforceable. While employers await the Supreme Court’s decision, other courts continue to weigh in on the matter.  Just last week, a New York State appellate court in Gold v. New York Life Ins. Co.2017 NY Slip Op 05695 (App. Div. 1st Dep’t, July 18, 2017), found itself aligned with those federal circuit courts of appeal invalidating these waivers.  Given the continuing disagreement among courts across the nation – both federal and state – as to whether the Federal Arbitration Act’s policy favoring arbitration should trump the National Labor Relations Act’s prohibition on contracts that restrict the rights of employees to engage in collective action, the need for clarity from the Supreme Court is more urgent than ever. Employment Matters will of course continue monitoring these important developments, so please check back in for regular updates.

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

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

Everyone loves a good courtroom drama.  So just imagine this pitch: henchmen of an evil dictator hack their way into a movie studio computer system.  Once inside, they steal the most sensitive personal information of the studio’s stars, executives and employees.  Their most intimate secrets, spilled over the Internet.  Who can help these poor souls?  Why, the brave and hard working class action lawyers, that’s who.  Through grit, pluck and lawyerly derring-do, our intrepid heroes soon bring the evil wrongdoers to justice.  Think “The Manchurian Candidate” meets “Erin Brockovitch”.

But real life is rarely like the movies, even when it involves the movies.  Yes, Sony Pictures Entertainment (“SPE”) did suffer a cyberattack that disclosed employees’ personally identifiable information (“PII”).  The data breach was allegedly perpetrated by North Korean hackers in retaliation for SPE’s release of “The Interview,” a satirical comedy depicting an attempt on the life of North Korean dictator Kim Jong-Un.  And class action litigation predictably followed.  But the evil wrongdoers who faced the wrath of class counsel?  Alas, the hackers were inconveniently beyond the reach of our legal system and, thus, unavailable to answer for their crime.  So SPE, the studio victimized by the hack, would have to do.

And the result of this drama?

Continue Reading It’s A Wrap! Sony Pictures Data Breach Case Settles Without A Hollywood Ending For The Plaintiff Class

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

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

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

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

Last summer the Second Circuit issued an important decision that identified the proper test for determining whether an employer properly classified an individual as an unpaid intern.  The decision was a victory for employers because the nature of the test required courts to utilize a highly-individualized analysis of each intern’s experience, and therefore, it did not necessarily lend itself to class action treatment.  On rehearing, the Second Circuit has now amended this decision to clarify that the test is highly context-specific rather than dependent on the individualized experiences of each intern.

Continue Reading Second Circuit Amends its Unpaid Intern Classification Decision; Refines the Primary Beneficiary Analysis