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NLRB Developments Raise Questions About New Joint Employer Test (US)

The National Labor Relations Board experienced a setback on Monday, just two months after it overturned its predecessors’ employee-friendly test for determining when entities constitute joint employers. These developments create some uncertainty and, at a minimum, delay the Board from implementing the new test it created last December.… Continue Reading

Title VII Bars Sexual Orientation Discrimination, Says Second Circuit Court of Appeals (US)

Last spring, we reported that the Seventh Circuit Court of Appeals (which hears appeals from Illinois, Indiana, and Wisconsin federal trial courts) had become the first federal appellate court to conclude that Title VII’s sex discrimination prohibition also precludes discrimination based on sexual orientation. On February 26, 2018, the Second Circuit Court of Appeals, ruling … 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

Uncooperative employee loses disability rights protection

The duty on a UK employer to make reasonable adjustments applies only when it knows or ought to know about an employee’s disability. Establishing actual knowledge is easy enough, but what about constructive awareness, where the employer obviously does not know but is nonetheless being expected to act as if it did? In Gallop -v- … Continue Reading

California Federal Court Finds That “Gig Economy” Workers Are Independent Contractors, Not Employees (US)

Uber, Lyft, Airbnb, Postmates, DoorDash.  All are companies participating in what has been labeled the “gig economy,” where tasks are performed by workers on a short-term or freelance basis rather than through long-term or permanent employment.  As more people participate in this new, mostly smartphone application or Internet-based work model, litigation has followed centering on … Continue Reading

Recent First Circuit Decision Illustrates Overlap Between Title VII Gender and Sexual Orientation Claims (US)

“Sticks and stones may break some bones, but harassment can hurt forever,” began the United States Court of Appeals for the First Circuit’s January 25, 2018 (60-page) opinion in Franchina v. Providence Fire Department, a “sex-plus” discrimination case; the opening line foreshadowing the ultimate outcome of the appeal. In the underlying trial of this matter, … Continue Reading

ECHR keeps an eye on covert workplace surveillance, but for whose benefit?

Judge Dedov is the one to watch here.  He was the only one out of the European Court of Human Rights panel not responsible for a recent decision on employee surveillance which many may feel tilts European law around workplace monitoring altogether too far towards the interests of the employee. Ms Ribalda and her four … Continue Reading

When taking a stand on discrimination becomes misconduct

Rochford – v – WNS Global Services is a small (9 page) but perfectly formed UK Court of Appeal decision around when you can stand on your principles in the face of discrimination by your employer and when it just gets you sacked. Mr Rochford had been absent for an extended time with a bad … Continue Reading

National Labor Relations Board Overrules Controversial Decision Facilitating Union Organizing of Micro-Units

NLRB walks back Specialty Healthcare decision, eliminates “overwhelming community of interest” standard in deciding employer challenges to union-proposed bargaining units On December 15, 2017, in a 3-2 ruling in PCC Structurals, Inc., the National Labor Relations Board (“NLRB” or “Board”) overruled its controversial 2011 decision in Specialty Healthcare & Rehabilitation Center of Mobile (“Specialty Healthcare”).  … Continue Reading

Major Developments for Union and Non-Union Employers – NLRB Announces New Standards For Employment Policies, Joint Employment, and Signals Change In Election Rules

The National Labor Relations Board (NLRB or Board) issued two groundbreaking decisions on December 14, which will give both union and non-union employers significantly more flexibility to manage their operations.  Earlier this week, the Board also signaled that it will revise the “quickie” election rules implemented in 2015 in the near future.  These developments will … Continue Reading

Landmark Same Sex Visa Application Judgment in Hong Kong

On 25 September 2017, the Hong Kong Court of Appeal passed down a unanimous judgment in the case of QT v. Director of Immigration to allow QT to obtain a dependent visa through her same-sex partner who works in Hong Kong. The spousal visa in question previously was granted by the Immigration Department only to heterosexual couples, … Continue Reading

First director sent to prison after MPF contributions default in Hong Kong

As Hong Kong employers are well aware, the Mandatory Provident Fund Scheme Ordinance provides that any employer that, without reasonable excuse, fails to make a timely payment of mandatory contributions commits an offence and could be fined up to HKD 450,000. Culpable bosses could also face up to four years’ imprisonment. The Mandatory Provident Fund … Continue Reading

Working from home not enough to support independent contractor relationship

The scrutiny by the Australian Courts of independent contractor relationships continues with the recent case of Putland -v- Royans Wagga Pty Limited. The Federal Court found in August this year that a husband and wife who provided home-based clerical work exclusively to one company were its employees rather than independent contractors. Royans Wagga’s business involved … Continue Reading

When a little knowledge is a dangerous thing – reliance on immigration law to justify dismissal

Every employer knows that UK law relating to illegal workers is big and fierce and that you take liberties with it at your peril. However, here is what can happen when you take it too seriously. In Abellio London Limited – v – Baker, the EAT has this month taken a look at whether an … Continue Reading

Federal Court Clarifies When Employers Must Pay Employees For Pre- or Post-Shift Activities

A federal court recently provided guidance on an issue that still vexes some employers, i.e., when they must pay employees for time spent on tasks immediately before or after a shift. Many employers require employees to take certain steps immediately before or after they start their actual shifts. For example, an employer might require an … Continue Reading

“One-Size-Fits-All” Return-To-Work Policies Cause An Extra Large Problem For Major US Airline

On November 3, 2017, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against a major United States airline, alleging the company maintained policies that violated the Americans with Disabilities Act (“ADA”), and inked a $9.8 million settlement deal with the company the same day. The EEOC alleged that the company maintained a “100% return … Continue Reading

Department of Labor Takes Surprise Appeal From Texas Decision Overturning Overtime Rule

The Department of Labor (DOL) is appealing a Texas judge’s decision to toss out an Obama-era rule that would have extended overtime pay to some 4 million Americans. As we reported previously, the Secretary of Labor under former President Obama announced a rule raising the salary basis threshold for overtime exemption from $455/week to $913/week, … Continue Reading

Winds Of Change Blowing At The NLRB? One Recent ALJ Decision Provides A Glimmer Of Hope

Many employers find the current environment created by the National Labor Relations Board (“NLRB” or “Board”) not only confusing, but often quite hostile, particularly its treatment over the past few years of employer work rules governing employee behavior in the workplace.  The Board has taken any increasingly narrow posture, most notably in the past three … Continue Reading

The Hits Keep Coming: Third Travel Ban Partially Blocked by Two Court Rulings

For the third time in 2017, US District Courts have thwarted the Trump administration’s attempt to implement a travel ban. On October 17, 2017, the US District Court for the District of Hawaii issued a temporary restraining order (“TRO”) blocking most of the restrictions President Trump laid out in his newest September 24, 2017 travel … Continue Reading

Third Circuit Refuses to Give Progressive a (Rest) Break on Compensable Flex Time Policy

On October 13, 2017, the US Court of Appeals for the Third Circuit ruled in a precedential decision that employers are obligated by the Fair Labor Standards Act (FLSA) to pay their employees for breaks of 20 minutes or less, even if they are logged off their computers and free from any work-related duties. The … Continue Reading

Looking into disciplinary investigations – EAT’s lessons on when enough is enough

It is a basic plank of a fair disciplinary dismissal that it be preceded by a reasonable investigation.  But what is that, exactly?  How much detail must you include in your enquiry, how many witnesses must you grill, how far back do you have to go, how far must you challenge or test the evidence … Continue Reading
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