US District Courts Start Applying Kisor v. Wilkie; Is Auer Deference Now a “Paper Tiger”?

Legal System CourthouseOur colleague Brent Owen at the FrESH Law Blog (which covers perspectives on Environmental, Safety, and Health law) recently provided an update to his prior post addressing the US Supreme Court’s then-pending decision in Kisor v. Wilkie.  In that case, decided in late June 2019, the Court addressed the Auer standard of deference that is applied by courts to administrative agencies’ interpretations of their regulations.  Although Kisor did not involve an employment dispute per se, the decision has broad implications for agency action, including those taken by agencies that regulate employment matters, i.e., the U.S. Department of Labor, Equal Employment Opportunity Commission, and National Labor Relations Board.  Since the Court’s decision, district courts have begun applying the Auer standard post-Kisor, including in employment cases, as discussed in Brent’s insightful post, which appears below.


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Implicit Bias and Disparate Impact Claims: A Primer for Employers (US)

Employers are generally familiar with the complex web of federal and state statutes that prohibit workplace discrimination on grounds including sex, race, color, national origin, religion, genetic information, age, and disability and they are, by and large, vigilant to prohibit explicit forms of discrimination on these protected bases.

But rare is the case where direct evidence of explicit bias is alleged. Cases alleging disparate treatment are more often than note based on circumstantial evidence. Another class of cases – those alleging disparate impact – are even further attenuated. In such cases, facially neutral policies or practices are examined to determine if, as applied, they disproportionately affect protected classes – what the Supreme Court has explained as “practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424 (1971). Continue Reading

It’s Black History Month – so let’s talk about positive discrimination (UK)

To its critics positive discrimination is a set of benefits and privileges reserved for minorities. BAME inclusion events and initiatives designed to encourage BAME job applicants are frequently found in the firing line. It’s a pretty dynamite topic which evokes feelings of victimisation, unfairness and inequity and can stunt enthusiasm for diversity in the workforce.

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California Passes Slew Of Worker-Friendly Laws, Most Notably Banning Mandatory Arbitration of Employment Claims

California Governor Gavin Newsom just signed a new batch of worker-friendly laws sponsored by Democrats in the California Assembly and Senate.  These laws cover a range of topics from arbitration agreements to workplace safety.

AB 51 will garner particular attention because not only does it substantially prohibit arbitration agreements, it criminalizes them.  The new law applies to contracts for employment entered into after January 1, 2020.  It precludes requiring an applicant or employee, “as a condition of employment, continued employment or receipt of any employment-related benefit . . . to waive any right, forum or procedure” for any claim arising under California’s Labor Code and its Fair Employment and Housing Act.  The lawmakers anticipated that employers might try to sidestep this law by including an opt-out provision in otherwise mandatory arbitration programs.  To that end, the law also provides that “an agreement that requires an employee to opt out of a waiver or take any affirmative action in order to preserve their rights is deemed a condition of employment.”  AB 51 has minimal exceptions; it does not apply to post-employment agreements such as settlement or severance agreements.  Nor will the new law apply to persons registered with self-regulatory organizations under the Securities Exchange Act.  Continue Reading

I’m an Employer – What Do I Need to Do under CCPA? (US)

In part 1 of an upcoming series of posts on the California Consumer Privacy Act (CCPA), members of our Data Privacy & Cybersecurity and Labor & Employment practices discusses the limited moratorium on employee/worker data, the scope of the exemption under the moratorium and what employers need to do now.  The full post is available on our sister blog, Security & Privacy//Bytes.

A Divided U.S. Supreme Court Hears Oral Arguments on Trio of LGBT Employment Discrimination Cases (US)

On October 8, 2019, the U.S. Supreme Court heard oral argument in three employment discrimination cases involving what protection, if any, Title VII of the Civil Rights Act of 1964 – which prohibits discrimination in employment on the basis of, among other things, sex – affords against sexual orientation and gender identity-based discrimination.  As we previously discussed here, there is currently no explicit protection against such discrimination under federal law, and federal appellate courts are split on the issue.  This term, the Supreme Court will determine whether the language in Title VII that prohibits employment discrimination “because of … sex” also extends to sexual orientation and transgender-based discrimination.   Continue Reading

Influencer Advertising: How Brands Can Successfully Navigate Using Influencers or Dealing With Employees Posting About Work on Social Media (UK)

Influencer advertising is on the rise. In response to this, regulators have issued a joint guide on advertising laws and rules. We discuss perspectives in this brief video on how brands can successfully navigate using influencers and what happens when employees post about work on social media.

Sexual harassment in the workplace, Part 6 – learning points from our recent panel event (UK)

On 25 September, we were joined at our London office by clients and contacts for a discussion on sexual harassment in the workplace, in particular the proposals set out by the UK government in its consultation document. The event was a great success and we are grateful to our panel of high profile speakers for sharing their experiences and insights on this topic.

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