Posts from Employment Matters Blog
August 26th, 2014
Employers have recently enjoyed some victories in the U.S. Supreme Court and in the California Supreme Court regarding the use of class/collective action waivers in employment arbitration agreements (e.g. Italian Colors and Iskanian). Class/collective action waivers in arbitration agreements generally prohibit the employee from forming or joining a class or collective action litigation or arbitration addressing employment-related claims against an employer, including, for example, violation of the Fair Labor Standards Act. This is an effective tool for employers to limit exposure and liability in wage/hour class and collective action litigation. So, if an employer can utilize a class/collective action waiver in an employment arbitration agreement then it makes sense that the employer can include one in a severance agreement just the same, right? Wrong said the Sixth Circuit, in Killion v. KeHE Distributors, Inc.
August 22nd, 2014
Earlier this summer, a New Jersey appellate court, in Rodriquez v. Raymours Furniture enforced a provision in an employment application that reduced the period in which an employee could sue an employer to six months from the date of the adverse employment action. This ruling – the first of its kind in the employment context by a New Jersey appellate court – is consistent with a New York appellate court ruling just last year involving the same employer and the same employment application (Hunt v. Raymour & Flanigan). These rulings are significant to employers because they provide a concrete yet seldom-used tool to limit exposure to employment lawsuits.
August 21st, 2014
More bad news for employers: Maryland’s Court of Appeals (its highest court) has now put to rest any question about an employee’s right to recover treble damages in connection with an unpaid overtime claim.
Labor Department Adds Gender Identity and Transgender Status to Prohibition on Sex Discrimination
August 20th, 2014
On August 19, 2014, the Department of Labor’s Office of Federal Contractor Compliance Programs issued a directive advising that it will consider cases of discrimination based upon gender identity and transgender status to be violations of Title VII of the Civil Rights Act and Executive Order 11246 (which prohibits employment discrimination by federal contractors). According to the guidance, “disparate treatment of a transgender employee because he or she does not conform to the gender stereotypes associated with his or her biological sex is a form of sex discrimination.” This policy takes effect immediately and does not require any additional rulemaking as it is merely an interpretive ruling under existing regulations.
August 19th, 2014
Last week, the NLRB took an exceptionally broad view of what constitutes “concerted activity” and what kind of efforts are aimed at “mutual aid or protection” under the National Labor Relations Act. For employers, this could mean increased Board scrutiny of internal investigations into employees’ complaints of harassment.
Governor Christie Vetoes New Jersey Unemployment Discrimination Bill
August 18th, 2014
In somewhat of a surprise move, in the same week that New Jersey Governor Chris Christie signed into law the Opportunity to Compete Act, which prohibits employers from inquiring about job candidates’ criminal histories early in the hiring process (which we wrote about here), the Governor vetoed a bill prohibiting discrimination against the unemployed (a measure which we wrote about here just last month).
Governor Christie Signs Scaled-Back Opportunity to Compete Act – New Jersey’s Ban the Box Bill
August 12th, 2014
We previously wrote (here and here) about New Jersey’s proposed “ban the box” measure, known as the Opportunity to Compete Act, a law that would prohibit employers from inquiring about job candidates’ criminal histories early in the hiring process. As expected, Governor Chris Christie signed the scaled-back, more employer-friendly version of the Opportunity to Compete Act into law yesterday.
A Lesson on the ADA: Engaging in Good Faith in the Interactive Process is Essential
August 12th, 2014
Understanding the mandates of the Americans with Disabilities Act and similar state and local laws is easy: employers cannot discriminate against individuals with disabilities. However, navigating the reasonable accommodation requirements under these laws is no easy task for employers, especially when the laws only require employers to provide an accommodation that enables the employee to perform the essential duties of the position, rather than the one that employee necessarily prefers. A recent New York federal district court case, Goonan v. Federal Reserve Bank of New York, in which the employer failed to win early dismissal of a disability discrimination claim, highlights the importance of engaging in the interactive process correctly.
Do as I Say, Not as I Do: Even the Government Falls Victim to Wage and Hour Violations Sometimes
August 11th, 2014
Remember last fall when all we could talk about was the government shutdown? The 16-day government shutdown captured the attention of a nation once again gripped by seemingly-manufactured political crisis. Last week, two news items reminded me that while the shutdown is now long behind us, its effects are still being felt. The first was an article in the Washington Post, which reported about the existence of a shutdown baby boom.
Colorado Federal Court Walks Back Rejection of ADEA Waiver in RIF Case
August 11th, 2014
In a previous post we discussed Foster v. Mountain Coal Company LLC, the District of Colorado’s decision invalidating a waiver of an employee’s claims against his employer under the Age Discrimination in Employment Act (ADEA) after the employee was terminated in connection with a reduction in force (RIF). The court concluded that under the Older Workers’ Benefit Protection Act (OWBPA), the waiver the employee signed did not adequately “advise” him of his right to consult with an attorney prior to executing a severance agreement because the waiver merely contained passive language in the past tense stating that the employee had been given an “opportunity … for consultation with an attorney.” We now alert you to the Court’s reversal of that decision in response to the employer’s motion for reconsideration.
August 11th, 2014
The National Labor Relations Board is attempting to expand the reach of the National Labor Relations Act once again – this time the NLRB’s Office of the General Counsel authorized formal complaints against McDonald’s USA, LLC, despite the fact that the alleged unfair labor practices occurred in restaurants owned by franchisees, and not McDonald’s. (Franchisees own roughly 90% of the 14,000 McDonald’s restaurants). In announcing that franchisors like McDonald’s may be named as respondents in unfair labor practice charges, the Board not only has rocked the future of the franchise business model, but is also trying to broaden its joint employer test in determining who qualifies as an employer for labor relations purposes.
August 7th, 2014
Federal contractors must be straining their necks to see if they have an actual target on their backs. Last week, President Obama signed an executive order that requires federal contractors to disclose labor and employment law violations dating back three years. This latest Order follows a number of other executive directives from President Obama this year that target the labor and employment practices of government contractors, including a hike in the minimum wage, an expansion of overtime eligibility, and a ban on discrimination on the basis of sexual orientation or gender identity. The Order also requires government contractors to give their employees information concerning their hours worked, overtime hours, pay, and any additions to or deductions made from their pay. The stopgap measures come in a year where Congressional gridlock has thwarted many of the President’s more wide-reaching labor law initiatives.
Revenge Porn: A Disturbing Picture
August 6th, 2014
I recently wrote an article for SHRM’s HR Magazine about Revenge Porn – a vicious new way to smear someone’s professional reputation.
PLEADING A NON-COMPETE CLAIM: Sometimes the Bare Minimum Is Just Enough
August 5th, 2014
There is no such thing as “per se” unenforceability of non-compete agreements (with a few notable exceptions). Instead, a court will enforce a non-compete if it meets whatever criteria a particular jurisdiction establishes – those criteria typically involve some combination of facts that show that a post-employment covenant is reasonably tailored to protect an employer’s legitimate business interests. But if you don’t plead the facts to support those legitimate interests, you may find yourself on the wrong side of a motion to dismiss. That was almost, but not quite, the result in Installed Building Products, LLC v. Cottrell, a recent Western District of New York case, where the court found that a plaintiff sufficiently alleged the minimum of facts necessary to advance its non-compete claims against its former employee and his new employer.
Conflicts & Nepotism – A Dangerous Employment Cocktail
August 4th, 2014
Last week, Alabama Governor Robert Bentley removed Alabama State University Trustee Marvin Wiggins for violating the University’s conflict of interest rules. The removal proved once again that if you are responsible for the oversight of an organization’s governance or operations, you must be mindful of your family’s relationship to that organization. Given the broad range of employment and service provider relationships of public and private universities, now is as good a time as any to assess the content and application of conflict of interest policies.
Shuffleboard, Early Bird Specials, and … Whistleblowing?
August 1st, 2014
When most employers hear the word “whistleblower,” they think of their current employees and various anti-retaliation laws; however, under the SEC’s “Whistleblower Program,” the “whistleblower” may be a current or former employee. Indeed, as reported recently by The Wall Street Journal, retirees make up the largest group of individuals providing information under the Whistleblower Program.
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