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Federal Court Decision On WARN Act And COVID-19 Could Signal Problems For Larger Employers (US)

UPDATE: On January 21, 2021, the defendants filed a motion with the district court for permission to take an interlocutory appeal to the 11th Circuit Court of Appeals on the following question: “What causal standard is required to establish that a plant closing or mass layoff is “due to any form of natural disaster” under … Continue Reading

Representative’s reprimand for clear misconduct unlawful, says EAT (UK)

The Employment Appeal Tribunal has recently handed down a judgment which serves as a useful reminder for employers of the risks of taking disciplinary action against union representatives for behaviour which may look like misconduct but which actually constitutes union activity. By way of background, section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) … Continue Reading

Dynamex is Retroactive Says the California Supreme Court  – The Independent Contractor Law Now Looks Back and Forward (US)

The range of employers who may be liable for the misclassification of workers just got bigger. On January 14, 2021, the California Supreme Court decided that the decision in  Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) applies retroactively to all non-final cases that predate the April 2018 Dynamex decision. Dynamex … Continue Reading

US Immigration Update: Must Be the Season of the Witch

It’s been a frenetic October and we’re still in the first week. Here is a quick summary of significant developments in U.S. Immigration just within the past few days. Federal District Court Issues Preliminary Injunction Halting Implementation of Nonimmigrant Visa Ban On October 1, 2020 Judge Jeffrey S. White of the District Court for the … Continue Reading

Procedure-free dismissal found fair – don’t try this at home (UK)

“Loss of trust and confidence” is often pleaded as a basis for a fair dismissal, but rarely successfully.  Employment Tribunals are astute to employers using it as a short cut to address performance or conduct issues without going through a proper procedure.  After all, a dismissal without a fair procedure is going to be unfair … Continue Reading

Federal Appeals Court Allows Title VII “Sex-Plus-Age” Claims (US)

The Tenth Circuit – covering Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming – just became the first federal appellate court to explicitly rule that employees can bring “sex-plus-age” claims against employers under Title VII of the Civil Rights Act of 1964—a claim alleging discrimination on the basis of gender against individuals over the age … Continue Reading

NLRB Provides Much-Needed Reality Check, Lowers Barrier To Employers’ Ability To Discipline And Discharge Employees Who Engage In Arguably Protected, But Plainly Disruptive, Workplace Conduct (US)

An employee confronts you – a small business owner – and calls you a “f***ng mother f***cker,” a “f***ing crook,” an “a**hole,” and “stupid,” tells you that none of your employees like you and everyone talks about you behind your back, and warns you that you’ll regret firing him, if you do. Or you’re a … Continue Reading

Supreme Court Ruling Limits Insurer and Employer Contraceptive Obligations (US)

Earlier this month the Supreme Court of the United States upheld a regulation adopted under the Trump administration significantly cutting back the requirement that insurers and group health plans provide coverage for contraceptives without cost sharing under the Affordable Care Act (ACA).… Continue Reading

Sixth Circuit Reverses Ohio Federal Court: Genetic Mutation Affecting Normal Cell Growth May Qualify as a Disability under the ADA (US)

In a previous blog, we discussed Darby v. Childvine, a decision from the United States District Court for the Southern District of Ohio in which the court considered whether an otherwise healthy person with a genetic mutation meets the definition of disabled under the federal Americans with Disabilities Act (“ADA”).  As a reminder, the ADA … Continue Reading

U.S. Supreme Court Adopts Broad Interpretation of the “Ministerial Exception,” Protecting Religious Schools Against Employment Discrimination Claims (US)

The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those … Continue Reading

Landmark U.S. Supreme Court Ruling Prohibits Sexual Orientation And Gender Identity-Based Discrimination In Employment (US)

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable … Continue Reading

BREAKING: US Supreme Court – Title VII Prohibits Discrimination In Employment Based On Sexual Orientation And Gender Identity

Resolving a question that previously had vexed lower courts and resulted in inconsistent rulings across the country, on Monday, June 15, 2020, the United States Supreme Court ruled that the prohibition against sex-based discrimination in employment set forth in Title VII of the Civil Rights Act of 1964 includes claims of sexual orientation and gender … Continue Reading

The Customer May Not Always Be Right When It Comes To Sexual Harassment (US)

We all know that employers have a legal obligation under federal law, as well as under various state and local laws, to provide their employees with a safe work environment free from sexual harassment, and that under certain circumstances, an employer can be held legally responsible for harassment directed at its employees. However, do companies … Continue Reading

Third Circuit Clarifies That A Disability Must Be Both “Transitory and Minor” To Qualify Under The Exception To The “Regarded-As” Prong of The ADA (US)

With the Americans with Disabilities Act (ADA) now 30 years old, most people, and certainly all HR professionals and employment lawyers, know that it is unlawful to discriminate against employees (and applicants) on the basis of a physical or mental disability. What is less widely known, however, is that the ADA not only prohibits discrimination … Continue Reading

Federal Judge Says NLRB’s Revised Election Rule Was Improperly Implemented (US)

UPDATE: June 1, 2020: The NLRB announced via a press release and General Counsel memorandum that notwithstanding the judge’s order remanding the rule to the NLRB for reconsideration, “it will implement in full all of the rule changes unaffected by the recent U.S. District Court order.”  Accordingly, the following provisons in the rule are in … Continue Reading

And now for something completely different – EU abuse principles sink self-serving contract variation

Quite a fun little case on TUPE this week, if you like that sort of thing (and on the upside, even if you don’t, at least it has nothing to do with COVID-19). Regulation 4(4) of TUPE states that TUPE-related changes to terms of employment are void in most circumstances.  This has long been read … Continue Reading

NLRB Adopts A Bright-Line Rule Voiding Union Election Ballots With Stray Marks (US)

With almost all of the current news being focused on coronavirus-related topics, it’s easy to forget that courts and agencies continue to do their jobs, issuing decisions and opinions. On occasion, one of those decisions is significant enough to warrant a distraction from all things COVID-19. A recent National Labor Relations Board (NLRB or Board) … Continue Reading

U.S. Women’s National Soccer Team’s Equal Pay Act Claim Dismissed, But Other Gender-Based Claims Remain (US)

Our colleague Jacob Davis at Squire Patton Boggs’  Sports Shorts blog discussed the recent ruling in the Equal Pay Act and Title VII case brought by members of the U.S. women’s national soccer team against U.S. Soccer alleging that they were discriminated against by being paid less than their male counterparts.  On Friday, May 1, … Continue Reading

Employer’s After-the-Fact Discovery of Lack of Job Qualification Sinks Employee’s ADA Discrimination Claim (US)

Sunny Anthony worked for TRAX International as a technical writer.  During the course of her employment, she asked TRAX to accommodate her disabilities–post-traumatic stress disorder and related anxiety and depression—by letting her work from home, which TRAX denied or otherwise declined to allow.[1]   So Ms. Anthony sued TRAX, alleging that it violated the Americans with … Continue Reading

Arbitration Agreements Lacking Employer’s Signature Can Be Enforceable, Says Texas Appellate Court (US)

On April 16, 2020, a three-judge panel of the Court of Appeals for the First District Court of Texas held that an employer could compel a former employee to arbitrate her wrongful termination case, even though it had not signed the arbitration agreement, because the evidence demonstrated that the employer intended to be bound by … Continue Reading

Early guidance for administrators considering furlough (UK)

Earlier this week, Mr Justice Snowden gave the first judgment on the Government’s Coronavirus Job Retention Scheme [here].  Rather than bask in the Bank Holiday sunshine digging into his Easter eggs, he sought to bring clarity to some of the more murky aspects of the scheme – specifically, how the Scheme operates when the employer … Continue Reading

Next steps in vicarious liability – no liability for employee’s personal vendetta (UK)

Back in 2016 we commented on the increasing breadth of the vicarious liability concept as seen in a claim against supermarket chain Morrisons [here].  The store was held liable to a customer who was violently assaulted by one of its petrol station attendants in direct contravention of the criminal law, his training and all reasonable … Continue Reading

NLRB Holds Provisions in Voluntary Severance Agreement Are Not Unlawful “Work Rules” (US)

In non-coronavirus related developments, on March 16, 2020, the National Labor Relations Board (NLRB or Board) issued a decision in Baylor University Medical Center, reversing an Administrative Law Judge (ALJ) decision that found certain severance agreement provisions to be unlawful under Section 8(a)(1) of the National Labor Relations Act (NLRA).  Section 8(a)(1) prohibits employers from … Continue Reading
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