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

The basketball court isn’t the only place you’ll see interesting uniforms this month.  Many employers choose to implement and enforce their own uniform requirements and dress codes at work.  But if done incorrectly, uniforms or dress codes may reinforce stereotypical gender roles and put transgender employees and applicants in a very uncomfortable place.  In addition, some religious people in the workplace require exceptions to uniform requirements and dress codes in order to adhere to their beliefs.  There was even a hotly debated Supreme Court opinion a couple years ago about a religious headwear exception to an employer’s dress code.  These increasing changes in the law are forcing employers to take a time out to rethink their uniform and dress code strategies to make sure they do not travel out of bounds.

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Continue Reading March A-Wear-Ness: Uniforms, Dress Codes, and Employee Choice

On Friday, the Supreme Court agreed to decide the issue of whether employers may include class/collective action waivers in their arbitration agreements.  As we discussed in more detail here, multiple federal appeals courts have split over the issue.  This has created a difficult situation for employers and employees, especially where the employer operates in multiple states.  By the time the Supreme Court takes up the issue in April, there may be a ninth justice on the bench.  We will continue to provide updates as new information becomes available, but in the meantime, we encourage you to visit our sister blog ADR: Advice from the Trenches and read its latest terrific post: When an Arbitration Clause Sounds Permissive But is Not – Does “May” Really Mean “Must”?

With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer.  This issue will almost certainly reach the Supreme Court given the deepening divide and the Court’s previous apparent interest in addressing issues surrounding class action waivers and arbitration agreements.

Continue Reading Where Are We With the Enforceability of Class Action Waivers in Arbitration Agreements?

In a carefully reasoned but ultimately restrained opinion the Seventh Circuit held that Title VII does not prohibit discrimination in employment on the basis of sexual orientation. While declining to become the first circuit court to extend Title VII to sexual orientation claims, the court acknowledged at length the persuasive force of a recent EEOC administrative decision and similar district court rulings noting the logical fallacy of enforcing Title VII’s protections against discrimination on the basis of gender nonconformity while permitting sexual orientation discrimination in the workplace to continue.

Continue Reading Seventh Circuit Holds Title VII Does Not Prohibit Sexual Orientation Discrimination, But Acknowledges Inherent Flaws in Precedent Underlying its Holding

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

As a recent federal appellate decision confirmed, the Americans with Disabilities Act does not require employers to always accommodate a disabled employee.  Instead, it is the employee’s burden to first show that he or she can perform the essential functions of the job with said accommodation.  Alternatively, if the employee cannot perform the essential functions of the job, he or she may seek, as a reasonable accommodation, a reassignment to a vacant position as long as the employee is qualified for that position.  In both cases, the employer is relieved of the accommodation requirement if it can show an undue hardship would result.  It was these essential function and vacancy issues that were the focus of the First Circuit’s opinion in Lang v. Wal-Mart Stores.

Continue Reading Clearly Defining the Essential Functions of the Job Can Make or Break An ADA Case

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

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