Archives

6th Circuit Shores Up Deference to Plan Administrator Interpretation in ERISA Retiree Benefits Suit (US)

On May 10, 2018, the 6th Circuit vacated the District Court for the Western District of Kentucky’s 2013 decision in “Clemons v. Norton Healthcare Inc. Retirement Plan”, No. 16-5124 (6th Cir. 2018). The District Court had granted summary judgment in favor of a class of former Norton Healthcare workers who chose to retire early and … Continue Reading

NLRB Announces New Approach for Addressing Joint-Employer Test, Alleged Conflicts of Interest (US)

On May 9, 2018, the National Labor Relations Board announced an interesting development regarding two key ongoing issues, i.e., the Board’s joint-employer standard and the alleged conflicts of interest of Member William Emanuel. This announcement also sheds light on how the Board may change other areas of federal labor law in the future.… Continue Reading

First Circuit Nixes ADA Suit Finding that Disabled Employee Was Not A “Qualified Individual” (US)

Not pulling any punches, the United States Court of Appeals for the First Circuit recently issued a decision finding against a disabled former Burger King franchise employee, explaining that although its admittedly harsh decision was a “lesson straight out of the school of hard knocks,” “[n]o matter how sympathetic a plaintiff or how harrowing his … Continue Reading

NLRB Takes a Bite Out of Big Apple Restaurant, Finding Terminations Following Employee Emails Expressing Workplace Concerns Violated the NLRA (US)

A unanimous decision by a three-member panel of the National Labor Relations Board (“NLRB”) recently found a New York City restaurant to have violated the National Labor Relations Act (“NLRA” or the “Act”) when it fired four employees after each of them emailed a group of other restaurant employees and owners expressing their positions on various … Continue Reading

Arizona Law Aimed at Curbing Service Dog Fraud May Be All Bark, No Bite (US)

Under federal and Arizona state law, persons with disabilities can bring service animals—all breeds of dog and miniature horses—into places of public accommodation (businesses open to the public) even if the business otherwise excludes pets. No specific training or certification program is required to qualify as a service animal, nor are such animals required to … Continue Reading

New York Mandates Sexual-Harassment Prevention Requirements for Private Employers (US)

This month both the State of New York and New York City have passed separate legislation designed to prevent sexual harassment in the workplace. Both laws require employers to conduct mandatory sexual harassment training for all employees. On April 10, 2018, Governor Cuomo signed the Budget Bill, which contains a mandate for employers in the … Continue Reading

Welcome Katharine Liao

We are excited to welcome Katharine Liao as a partner to our Labor & Employment practice in our New York and Los Angeles offices. Her arrival plays into our firm’s continued investment in strengthening our employment capabilities, particularly in wage and hour class action litigation. Katharine will be a valuable asset on relevant issues for … Continue Reading

US Senate Confirms John Ring as NLRB Board Member

With a 50-48 vote along party lines, on April 11, 2018, the United States Senate confirmed management-side labor lawyer John Ring as the newest member of the National Labor Relations Board.  With Member Ring’s confirmation, the NLRB is now back to full strength with five members, comprised of three Republican-nominated members and two Democrat-administration appointees.  … Continue Reading

Ninth Circuit Court of Appeals Finds Use of Salary History To “Justify” Unequal Pay Rates Violates Federal Pay Discrimination Law (US)

On April 9, 2018, the U.S. Court of Appeals for the Ninth Circuit issued an en banc ruling in Aileen Rizo v. Jim Yovino, case number 16-15372, holding that employers cannot justify a wage differential between men and women by relying on the employees’ respective wage histories alone. The plaintiff, a female consultant, learned that … 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

Negotiating A Deal? Ensure You Respond Appropriately To Union Requests For Information (US)

Mergers, acquisitions, and sales can be a common event for employers. These types of deals involve many moving parts, from both legal and operational perspectives. Given how complex deals can become, it can be easy to overlook obligations to labor unions when they arise. One recent National Labor Relations Board (“Board”) decision illustrates a key … Continue Reading

The Evolving World of Colorado Non-Compete Agreements (US)

On March 8, 2018, the Colorado Court of Appeals issued much-needed guidance regarding C.R.S. 8-2-113(3) in Crocker v. Greater Colorado Anesthesia, P.C. (“GCA”). This statutory provision provides that “any covenant not to compete provision of an employment, partnership, or corporate agreement between physicians which restricts the right of a physician to practice medicine . . … Continue Reading

How Far Can An Employee Go To Protest Working Conditions? NLRB Provides Important Guidance (US)

The newly comprised National Labor Relations Board recently clarified a key outstanding issue for employers: when will an employee’s “outburst” or unprofessional conduct go so far that the National Labor Relations Act cannot protect the employee? The Board’s decision may disappoint employers who hoped the new Trump-appointed members would create a new test. Nevertheless, the … Continue Reading

U.S. Department of Labor Announces New Pilot Employer Self-Reporting Program To Address Overtime and Minimum Wage Violations (US)

On March 6, 2018, the U.S. Department of Labor (“DOL”) announced a new, nationwide pilot program which it claims will facilitate quick and efficient resolutions of Fair Labor Standards Act (“FLSA”) minimum wage and overtime violations by allowing employers to promptly pay back wages to employees and at the same time avoid time consuming litigation … Continue Reading

California Supreme Court Applies DLSE Overtime Pay Calculation Requirements Retroactively (US)

Few issues strike fear into the hearts of payroll professionals like trying to calculate overtime pay, especially given the challenges associated with determining the “regular rate of pay,” which serves as the foundation for the calculation of overtime pay for non-exempt, hourly employees. On Monday, March 5, 2018, the California Supreme Court ruled in favor … Continue Reading

Measure Aimed At Reducing Frivolous ADA Public Accommodation Suits Passes House (US)

On February 15, 2018, the United States House of Representatives voted in favor of adopting the ADA Education and Reform Act of 2017, H.R. 620, which, if approved by the Senate and signed into law, would amend the Americans with Disabilities Act (“ADA”). Title III of the ADA (“Title III”) requires “places of public accommodation” … Continue Reading

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

U.S. EEOC Announces Four-Year Strategic Plan

On February 12, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) approved its Strategic Enforcement Plan (SEP) for FY2018 – FY2022 (SEP).   Congress requires federal administrative agencies such as the EEOC to develop strategic plans every four years and publish their plans on their website.  The EEOC’s plan serves as a framework for the agency in … Continue Reading

Supreme Court Narrows Scope of Dodd-Frank Whistleblower Protection (US)

In a decision issued on February 21, 2018, the United States Supreme Court substantially narrowed the class of employees who may claim whistleblower protection under the anti-retaliation provisions of the Dodd-Frank Act. The Sarbanes-Oxley Act of 2002 (“SOX”) was passed to protect investors from the possibility of fraudulent accounting activities by corporations. In 2010, Congress … 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
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