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

Welcome back for this month’s edition of the Bubbler!  There’s plenty to talk about, so let’s jump right in.

The California Supreme Court issued an important decision this week addressing the test for whether a worker is an independent contractor or an employee.  The U.S. Supreme Court declined to review a Seventh Circuit decision upholding an employer’s rule that a months-long leave of absence was not a reasonable accommodation. The Ninth Circuit held that employers are prohibited from using an employee’s past salary as a legitimate “factor other than sex” for purposes of defeating a Fair Pay Act claim, emphasizing that allowing the inclusion of prior salaries would only perpetuate gender pay disparity. The Fifth Circuit downsized ERISA fiduciary standards in a ruling that invalidated a set of seven expansive fiduciary rules. The Northern District of Illinois issued an unusual ruling, holding that two plaintiffs’ claims were subject to an enforceable arbitration agreement, yet refused to compel arbitration. The DOJ challenged a set of competitors’ no-poaching agreements as per se violations of the Sherman Act, which regulates concerted anti-competitive action. Finally, in the wake of the #MeToo movement, New York (state and city) have passed new laws concerning workplace sexual harassment.

As always, stay tuned for more employment matters updates!

Lots to talk about in the Labor & Employment world!  The Massachusetts Pregnant Workers Fairness Act went into effect on April 1, 2018, imposing stricter non-discrimination rules on employers of pregnant workers. The U.S. Department of Labor launched the Payroll Audit Independent Determination program, which encourages employers to self-report wage and hour violations. The Sixth Circuit issued a decision in EEOC v. R.G. & R.G. Harris Funeral Homes, holding that transgendered employees are protected under Title VII, even mounted against an employer’s religious objections under the Religious Freedom Restoration Act.  The Commonwealth of Massachusetts lost a step in the legal challenge to the contraceptive mandate exemptions in the Affordable Care Act, on the grounds that it did not have standing to assert the relief it sought. Still on the federal landscape, Congress added an amendment to the FLSA in the recent omnibus budget bill, providing that an employer may not keep tips received by its employees for any purpose. The Supreme Court issued an important ruling holding that service advisors are exempt from the FLSA’s overtime requirements and rejecting the principle that FLSA exemptions should be narrowly construed.   The State of Washington followed suit with many other states, including California, New York, and Massachusetts, becoming the most recent state to add an updated Equal Pay Act, and a “Ban the Box” law.  In the wake of the #MeToo movement, Washington also barred nondisclosure agreements in sexual harassment suits.  As always, stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks, including a post on the Massachusetts Pay Equity Act coming up later this week.

Finally, there’s still time! Don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19.

Last week, the U.S. Supreme Court declined to review a decision by the Seventh Circuit Court of Appeals holding that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the Americans with Disabilities Act (ADA). The plaintiff in Severson v. Heartland Woodcraft, Inc. had asked the Supreme Court to decide whether there is a per se rule that a finite leave of absence of more than one month cannot be a reasonable accommodation under the ADA.  Without the Supreme Court stepping in to resolve the split among the federal circuit courts, employers are left without clear guidance as to how to navigate the interplay between the ADA and extended leaves of absence.

Continue Reading Employers Left in the Dark After U.S. Supreme Court Declines to Issue Ruling on Long Term Leave as a Reasonable Accommodation Under the ADA

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!

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

Mull v. Motion Picture Ind. Health Plan educates employers on the basics of the requirements of the Employee Retirement Income Security Act (ERISA) governing plan documents and summary plan descriptions. The lessons are sobering, particularly as they relate to group health plans. Although compliance with these requirements is neither difficult nor expensive, many employers nevertheless ignore them. The decision in this case might—and, in our view, should—encourage them to reconsider.

Continue Reading The Ninth Circuit Weighs in on ERISA’s Plan Document and Summary Plan Description Requirements: Mull v. Motion Picture Ind. Health Plan

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.

As we discussed yesterday at Mintz Levin’s Third Annual Employment Law Summit, big changes are likely in the offing as all three branches of our federal government begin to deal with labor and employment issues following President Trump’s election. President Trump’s first 100 days has already included action on a number of employment and labor law issues we’re following here at Mintz Levin.  The Administration has enacted or signaled changes – some potentially significant – in executive orders and through pronouncements of regulatory and enforcement priorities that promise to impact the field of labor and employment law.  Additionally, the expected confirmation this week of Judge Neil Gorsuch means all hands on deck at the United States Supreme Court, and congressional action so far suggests a potentially employer-friendly climate on Capitol Hill.

Below, we highlight changes in the leadership, regulation, and likely course forward for each of the branches of the federal government, and offer our predictions for 2017 and beyond under the current Administration.  Continue Reading Steady as She Goes or Charting a New Course? Employment and Labor Signals in the Trump Administration