Phew – it has been a whirlwind of a month in the employment law world! Just in time for spring, new laws are popping up like crocuses just about everywhere we turn.

Here is your monthly rundown of the most recent developments in labor and employment law: The Supreme Court significantly narrowed whistleblower protections under Dodd Frank with its decision in Digital Realty Trust, Inc. v. Somers.  The Second Circuit became the second circuit court to prohibit sexual orientation discrimination when it issued a decision holding that sexual orientation discrimination is sex discrimination under Title VII. In New York, just as employers finished preparing for and implementing the New York Paid Family Leave law, New York City passed new legislation requiring employers to grant temporary schedule changes for qualifying personal events, and amending the requirements for employers and employees engaging in a cooperative dialogue concerning a reasonable accommodation. The Massachusetts Attorney General’s Office issued guidance on the pay equity law scheduled to take effect in July; Austin, Texas became the first Texas municipality to enact a paid sick and safe leave law; and new legislation intending to crack down on sexual harassment has been proposed in several jurisdictions, including Connecticut and New York City. Stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks.

In the meantime, don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19!

On Monday, for the second time in less than a year, a federal appeals court ruled that Title VII forbids sexual orientation discrimination because it is a form of sex discrimination.  This time, in Zarda v. Altitude Express, Inc. the Second Circuit overturned decades of precedent and ruled that Title VII’s ban on discrimination “because of . . . sex” encompasses discrimination based on sexual orientation.   The decision is also an apparent rebuke of the position taken by the United States Department of Justice (contrary to the Equal Employment Opportunity Commission’s position) that sexual orientation discrimination was never intended to by Congress to be covered by Title VII.  The issue is almost certainly headed to the Supreme Court in its next term.

Continue Reading Second Circuit Becomes the Second to Prohibit Sexual Orientation Discrimination

As reported by our sister blog, ADR: Advice from the Trenches, a federal district court in New York held that an arbitrator could not certify a “class” that included non-appearing members. While neither the U.S. Supreme Court nor various Courts of Appeal have grappled with the viability of a class arbitration award, courts in the Second Circuit are taking the lead in addressing such issues.

Over the next two weeks we will release our Year in Review segment, which will look at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California while offering our thoughts about 2017.  Today we kick off this segment with New York.  In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017.  Register here

2016 brought big changes for New York State and City employers, including expansive new discrimination protections and substantial increases in the minimum wage and exempt salary thresholds.  While New York employers who successfully navigated 2016’s rush of legislative, regulatory and judicial obstacles might feel they’ve earned the right to shift their focus back from compliance issues to running their businesses, they should not lose sight of the additional challenges expected in 2017.

Continue Reading 2016 New York Employment Law Year In Review

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

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

Recently, we reported on Gobeille v. Liberty Mutual, in which the Supreme Court invalidated the Vermont all-payer claims data base law. Applying what appeared to us as a straight-forward application of existing ERISA preemption jurisprudence, the Court determined that the Vermont law had an impermissible connection with ERISA plans because it governed a central matter of plan administration, and was thus rendered inoperative (or “preempted” in the parlance of ERISA).  Gobeille’s holding is significant. The decision materially shifts the Federal/state balance of regulatory power, at the expense of the states, in instances where the states seek to regulate ERISA-covered employee benefit plans. This post examines an alternative approach raised in Gobeille, but not pursued, under which states might seek to regulate service providers of plans rather than the plans themselves to avoid ERISA preemption.

Continue Reading Gobeille v. Liberty Mutual: The Dog That Didn’t Bark, and the Next Front in the Preemption War

The Employee Retirement Income Security Act of 1974 (ERISA) made the regulation of employee benefit plans principally a matter of Federal concern. ERISA broadly and generally preempts—or renders inoperative—state laws that “relate to” employee benefit plans. Since 1974, the Supreme Court has developed a robust ERISA preemption jurisprudence in nearly two dozen cases.

On March 1, the Supreme Court handed down its most recent ERISA preemption decision. The case, Gobeille v. Liberty Mutual Insurance Company, struck down a Vermont law that required certain public and private entities (including health insurers) that provide and pay for health care services to report claims information to a state agency. Laws of this sort are sometimes described as establishing an “all-payer claims data base.” According to a “friend-of-the-court” brief filed by the National Governors Association, some 17 states (Arkansas, Colorado, Connecticut, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, and West Virginia) have enacted such laws. This post examines Gobeille’s place in the Court’s established body of ERISA preemption jurisprudence.

Continue Reading Supreme Court Rules that ERISA Preempts Vermont Claims Reporting Requirement

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

My colleague, Don Schroeder, was quoted in the Corporate Counsel article, Circuit Court Backs NLRB on Social Media Conduct, Voids Handbook Provision, in which he analyzes the NLRB’s stance on employer rules regarding worker conduct on social media. In addition to his analysis, Schroeder provides language that can be used as a disclaimer for employers in the process of drafting their online employee speech policies. The article outlines the latest ruling in Triple Play Sports Bar & Grille v. NLRB and its impact on what is considered “protected concerted activity.”

A unanimous panel of the Second Circuit recently upheld the NLRB’s well-publicized Facebook “Like” decision, which found that a sports bar violated the National Labor Relations Act when it terminated two employees for “liking” and commenting on a disparaging post from a former employee.  In an interesting twist, despite the NLRB’s insistence that the opinion be published to make it precedential, the Second Circuit—one week after issuing the decision—elected to keep the decision an unpublished summary order.

Continue Reading Second Circuit “Likes” Where NLRB Shakes Out on Social Media: Finds that Facebook “Likes” and Obscenity-Riddled Posts Were Protected by NLRA