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Seventh Circuit: Obesity Alone Is Not A Disability Under the ADA (US)

As we previously reported here, the issue of whether obesity is a legally-protected impairment is complex, and jurisdictions differ on the extent to which they consider obesity to be a disability under the Americans with Disabilities Act (“ADA”).  On June 12, 2019, the United States Court of Appeals for the Seventh Circuit joined the Second, … Continue Reading

State Law Round-Up: Developments in Wage and Hour (CO, MA, ME, WA), Non-Compete (WA), Commuter Benefits (NJ), Sexual Harassment (DE), and Sick Leave (Dallas and Minneapolis) Laws. (US)

It’s been an active few weeks since our last State Law Round-Up in mid-April 2019, with a number of bills being signed into new laws and case developments impacting employers in many US states over the past few weeks. Colorado Failure to Pay Wages as Theft Effective January 1, 2020, an employer’s failure to pay … Continue Reading

NLRB General Counsel Advice Memorandum Is “Uber” Favorable For Gig Economy Companies Utilizing Independent Contractors (US)

In a recently-released Advice Memorandum dated April 16, 2019, the National Labor Relations Board’s (“NLRB”) Office of the General Counsel (“GC”) determined that drivers utilizing Uber Technologies’ smartphone application-based rideshare platform are independent contractors, not employees, under the National Labor Relations Act (“NLRA”).  In arriving at this conclusion, the GC utilized the independent contractor test … Continue Reading

US Supreme Court Rules That Agreement to Class-Based Arbitration Procedures Must Be Explicit  

The Court’s ruling in Lamps Plus, Inc., et al. v. Varela is the latest in the Court’s ongoing pro-employer, pro-arbitration jurisprudence As we first reported here, the United States Supreme Court’s docket this term includes three significant cases interpreting various aspects of the Federal Arbitration Act (“FAA”).  Earlier this year, the Court ruled in the … Continue Reading

US Supreme Court Agrees to Decide Whether Title VII Prohibits LGBT Discrimination

After considering the petitions at eleven separate private conferences, on April 22, 2019, the U.S. Supreme Court granted certiorari in three cases involving the extent of protection provided by Title VII of the Civil Rights Act of 1964 – if any – against employment-based discrimination on the basis of sexual orientation and gender identity.  As we … Continue Reading

EEOC Proposes September 30, 2019 Deadline for EEO-1 Pay Data Collection (US)

As we previously reported here, on March 4, 2019, a federal court issued an order lifting the stay implemented by the White House Office of Management and Budget (“OMB”) regarding the pay data collection component of the EEO-1 report, finding that the OMB failed to demonstrate good cause for the stay.  The order left many … Continue Reading

More DOL Letters Needed For Clarity On Enforcement Strategy (US)

Expanding on their previous post on the subject, on April 3, 2019, Law360 published the following article authored by Squire Patton Boggs labor and employment attorneys Laura Lawless Robertson and Melissa Legault. The U.S. Department of Labor recently issued a trio of opinion letters offering employers guidance in implementing the Family and Medical Leave Act and the Fair Labor … Continue Reading

Can An Employer’s Disclosure Of An Employee’s Lawsuit In A Required SEC Disclosure Constitute Prohibited Retaliation? (US)

If you’re a fan of unusual employment law cases, the saga between SigmaTron International, Inc. and its former employee, Maria Gracia, has been the gift that keeps on giving for the past eight years.  Four years after filing her first lawsuit against SigmaTron (in which she eventually won over $300,000), Ms. Gracia sued her former … Continue Reading

Arizona Court of Appeals Strikes Down Law Restricting Local Governments From Requiring Private Employers To Provide Benefits That Exceed State Law Requirements (US)

In 2006, Arizona voters approved a ballot measure which resulted in the passage of the Arizona Minimum Wage Act and established a state-wide minimum wage (currently $11.00/hour).  This law also permitted individual Arizona counties, cities, and towns to regulate both the minimum wage and the employee benefits to be provided by private employers located within … Continue Reading

Two Recent Decisions Highlight Procedural Pitfalls in Employment Litigation (US)

Would-be plaintiffs in two employment decisions – one from the Fifth Circuit, one from the Ninth Circuit – were recently reminded that, no matter how solid the facts of their case, they can still lose on a technicality. The first case, Lee v. Venetian Casino Resort, LLC, considered whether a plaintiff’s Title VII claim was … Continue Reading

NLRB Issues Important Decision Narrowing What Constitutes “Protected Concerted Activity” (US)

Majority Rules That Skycap’s Complaint About Bad Tipping Was Not Protected Concerted Activity The National Labor Relations Board (“NLRB” or “Board”) kicked off 2019 with an important decision that significantly narrowed the standard for when an individual employee’s conduct will be found to be “protected concerted activity” under the National Labor Relations Act (“NLRA” or … Continue Reading

US Supreme Court Unanimously Rules in Favor of Workers, Holding Trucking Company’s Arbitration Agreement Exempt From Federal Arbitration Act

On January 15, 2019, the United States Supreme Court held in New Prime Inc. v. Oliveira that a trucking company could not compel its drivers, which it classified as independent contractors, to arbitrate their wage and hour claims against the company because Congress intended to exempt all interstate transportation workers from the Federal Arbitration Act … Continue Reading

Supreme Court Upholds Parties’ Right To Contract In First Arbitration-Related Decision Of Term (US)

As the Supreme Court’s October 2018 term opened, we wrote about three significant cases on its docket involving arbitration, each of which are likely to have an impact on the arbitration of employment-related claims.  The Court issued its decision in the first of those cases on January 8, 2019.  In his first opinion since joining … Continue Reading

Uncertainty Remains As DC Circuit Weighs In On NLRA Joint Employer Standard (US)

Much attention over the past few years has been given to the ongoing saga concerning the standard applied by National Labor Relations Board (“NLRB” or “Board”) to determine when two unrelated business entities share sufficient control over a group of employees such that they may be deemed “joint employers” under the National Labor Relations Act … Continue Reading

Healthcare Worker’s Vaccine Refusal Not Immunized by Americans with Disabilities Act (US)

On December 7, 2018, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously held in Hustvet v. Allina Health System that an employer did not unlawfully terminate an employee who refused to receive a rubella vaccination.  The plaintiff, a healthcare specialist working with potentially vulnerable patients, requested an accommodation exempting … Continue Reading

Snooping Employee Dooms Her Title VII Claims By Unauthorized Disclosure of Personnel Files (US)

On November 15, 2018, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously held in Netter v. Barnes that an employee did not engage in “opposition or participation” activity protected by Title VII of the Civil Rights Act of 1964 when she reviewed and duplicated confidential personnel files without authorization.  … Continue Reading

President Trump Nominates D.C. Circuit Judge Brett Kavanaugh for United States Supreme Court

If confirmed, the Court would have a solid pro-business, pro-employer majority President Trump’s nomination on July 9, 2018 of District of Columbia Circuit Court of Appeals Judge Brett M. Kavanaugh to the U.S. Supreme Court – President Trump’s second nominee in just a year and a half  – is likely to make the top U.S. … Continue Reading

US Supreme Court Strikes Down Fair Share Fees for Public Sector Unions

By Wm. Michael Hanna, Emily R. Spivack, and Dylan Yepez On June 27, 2018, the United States Supreme Court decided in a 5-4 decision that public sector unions may no longer collect so-called “fair share” fees from non-members.  The decision will have broad implications for public sector unions and employers. Fair share fees are charged … Continue Reading

Employment Litigation Impacted By U.S. Supreme Court Decision Reining In Successive Attempts at Class Litigation

In 1974, the U.S. Supreme Court decided in American Pipe & Construction Co. v. Utah, 414 U.S. 538, that the timely filing of a class action complaint tolls the applicable statute of limitations for all persons encompassed by that complaint. The impact of that ruling was that potential class members did not have to intervene … Continue Reading

US DOL’s Voluntary Wage Underpayment Reporting Program – PAID – Now Underway

As we blogged earlier this year, in March 2018, the United States Department of Labor (DOL) announced a new program, referred to as PAID (or, Payroll Audit Independent Determination), under which employers may voluntarily apply for DOL assistance in resolving potential claims for wage underpayment under the federal Fair Labor Standards Act (FLSA).  As previously … Continue Reading

US Supreme Court Says No Overtime Pay for Auto Service Advisors

In a case of straightforward statutory interpretation, the U.S. Supreme Court held on April 2, 2018 in Encino Motorcars LLC v. Navarro that service advisors employed at car dealerships are exempt from the overtime pay requirement under the Fair Labor Standards Act (FLSA). The dispute began in 2011, when service advisors employed by Encino Motorcars, … Continue Reading

NLRB Releases Slew of Advice Memoranda Providing Interpretative Guidance On Labor Issues (US)

During the first month and a half of 2018, the National Labor Relations Board (“NLRB” or “Board”) released a torrent of memoranda authored by its Division of Advice (“Advice”), a section of the NLRB’s Office of the General Counsel.  As you may have read on our blog before, Advice memoranda are issued by the NLRB’s … Continue Reading

All the rage – should confidentiality agreements in harassment cases be allowed?

News out this week that a committee of MPs is to look into workplace harassment, and in particular the use of confidentiality wording in settlement agreements arising from harassment allegations. Critics allege, says the BBC New Online, that such clauses are “abused by employers and legal experts to cover up wrongdoing” and used to “buy … Continue Reading
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