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Federal Judge Reinstates EEO-1 Pay Data Collection Requirement – Impact on Employers Still Unclear (US)

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, holding that the OMB failed to demonstrate good cause for the stay. As we previously reported here, in 2016, the U.S. … Continue Reading

“Scabby the Rat” Deflated When The Seventh Circuit Moves His Cheese (US)

Most business owners would shudder at the thought of rats being on their premises, but one rat is particularly unwelcome to employers – “Scabby the Rat.”  This red-eyed, rather vicious looking rat-shaped balloon (sometimes as tall as 25 feet) has become a symbol used by labor unions across the country to publicize that they have … Continue Reading

US Supreme Court to Reconsider Key Agency Deference Standard

Our colleague Brent Owen at the FrESH Law Blog (which covers perspectives on Environmental, Safety, and Health law) authored the post below addressing the US Supreme Court’s upcoming decision in Kisor v. Wilkie, which will address the Auer standard of deference that is applied by the courts to administrative agencies’ interpretations of their regulations.  Although Kisor involves the Department of … 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

The earth is doomed, and other reasons not to send an employee on leave (UK)

The New South Wales Civil and Administrative Tribunal in Australia last year awarded an employee AU$20,000 in compensation for pain and suffering where her employer forced her onto “personal leave” for assumed mental illness based on her discussion of conspiracy theories in the workplace. Though an Australian case, it contains valid lessons for UK employers … Continue Reading

Older, Wiser, and Out of Luck: Seventh Circuit Decision Limits Job Applicants’ Right to File Age Discrimination Claims (US)

On January 23, 2019, the Seventh Circuit Court of Appeals (which hears appeals from the federal district courts in and for Illinois, Indiana, and Wisconsin) issued an en banc decision in Dale E. Kleber v. CareFusion Corporation, a case in which the court wrestled with whether applicants for employment may successfully pursue disparate impact claims … Continue Reading

NLRB Reinstates Prior Test Determining Whether Workers Are Independent Contractors (US)

On January 25, 2019, the National Labor Relations Board returned in yet another area to a standard that existed before the “Obama Board.” In SuperShuttle DFW, Inc., the Board vacated the test it had adopted five years ago to determine whether a worker is an independent contractor or an employee for the purposes of the … 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

Ninth and Eleventh Circuits: Reporting To Work Impaired, Failing Drug Test, And Failing To Request Accommodation Doom Employees’ ADA Discrimination Lawsuits

As most readers of this blog are aware, the Americans with Disabilities Act (“ADA”) and analogous state laws prohibit employers from discriminating against qualified employees (and applicants) based on known physical or mental disabilities, and also require employers to provide those employees with reasonable accommodations for their disabilities.  Although broad in their protections, these laws … 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

Kentucky Supreme Court Dismisses Labor Unions’ Challenge to State Right-To-Work Law (US)

In 2017, the State of Kentucky enacted a right-to-work law, which, as you will recall from our prior posts (see here), bars employees from being required as a condition of employment to belong or financially contribute to a labor union.  (Kentucky was the 27th US state to pass a right-to-work law; in 2017, Missouri also … 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

Three New State Laws Legalize Marijuana Use, Sparking More Confusion and Igniting Further Conflict With Federal Law (US)

The mid-term elections are still on people’s minds, as recounts and run-offs for federal congressional and state gubernatorial candidates are finally wrapping up.  Meanwhile, and largely taking a media-coverage backseat to these high-profile races, many new state initiatives became law as a result of the mid-terms, three which involved legalizing marijuana for recreational or medical … Continue Reading

Title VII and LGBT Rights: The Current Landscape (US)

The U.S. Supreme Court currently is contemplating whether to review three employment discrimination cases involving what, if any, protection Title VII extends against discrimination on the basis of sexual orientation and gender identity.  See R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., case number 18-107 (considering transgender discrimination under … Continue Reading

EAT approves use of indiscriminatingly inappropriate banter? Not really (UK)

If I told you that calling a colleague with links to the Traveller community a “fat ginger pikey” might not be harassment, you would be forgiven for picking up the phone to the Solicitors’ Regulation Authority. That is, however, one of the points we can take away from the EAT’s decision in Evans v Xactly … Continue Reading

Unanimous Supreme Court:  ADEA Applies to All State Employers, Regardless of Size

In its first opinion of the 2018 term, the U.S. Supreme Court held in Mount Lemmon Fire Dist. v. Guido, No. 17-587, slip op. at 1-7 (November 6, 2018) that the Age Discrimination in Employment Act (“ADEA”) applies to all political subdivisions of states, regardless of size, rejecting an argument that the 20-employee jurisdictional threshold … Continue Reading

Employee Data Subject Access Requests in the UK: Part 4 – how to deal with mixed data

In part 1 of this blog series, we asked how employers facing a Data Subject Access Request (DSAR) should be dealing with ‘mixed data’ cases, i.e. when a third party’s personal data is intertwined with that of the requester? Mixed data comes in many forms; for example, an email from John to a colleague saying … Continue Reading

Doing Business In California – When Can an Out-of-State Employer’s Non-Compete Provision Stand?

Most companies doing business in California are aware of California’s long-standing public policy in favor of employee mobility over an employer’s ability to impose a provision prohibiting an employee from going to work for a competitor post-termination, which is embedded in California Business & Professions Code Section 16600.  Particularly where the employer is headquartered outside … Continue Reading

Written confirmation not a reasonable adjustment for a queasy employee (UK)

Here is an interesting little question about how far an employer needs to formalise steps taken to accommodate an employee’s disability. Mr Brangwyn went to work for South Warwickshire NHS Foundation Trust in 2008 as Occupational Therapy Technician.  This was not directly a medical role but did involve some time escorting patients around the building … Continue Reading
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