Hunton Employment & Labor Perspectives

The Ninth Circuit ruled on Monday, September 28, that California Private Attorney General Act (“PAGA”) claims cannot be waived in employment arbitration agreements, following the rule announced by the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014).  With this 2-1 ruling, the Ninth Circuit majority found that the Iskanian rule barring PAGA waivers is not preempted by the Federal Arbitration Act (“FAA”).

California Governor Jerry Brown indicated in late August that he intends to sign into law a California Senate Bill aimed at further closing gender pay gaps in California. On August 31, 2015, the California State Senate unanimously passed the bill which aims to eliminate gender wage gaps in California by amending the California Equal Pay Act to prohibit employers from compensating employees at wage rates less than rates paid to employees of the opposite sex for “substantially similar” work. Governor Brown was presented with Senate Bill 358 (“SB 358”) in early September, and it is anticipated he will sign it soon.

President Obama signed an Executive Order on Monday, September 7, requiring federal contractors to provide paid sick leave to their employees, effective January 1, 2017.  The Order  requires federal contractors and their subcontractors to let employees earn at least one hour of paid sick leave for every 30 hours worked, up to 56 hours, or 7 days, of leave.

For many employers and employees, arbitration is a quicker and less costly means of resolving employment-related disputes. As a result, it has become standard practice for many employers to require as a condition of employment that employees agree to arbitrate employment-related claims. Mandatory arbitration clauses are routinely found in employment agreements or given to employees as separate employment policies at the time of hire or during their employment.

California’s paid sick leave law, which only went into effect on July 1, 2015 and was recently further clarified on July 13, 2015, continues to raise questions for California employers. Most recently, California’s Division of Labor Standards Enforcement (“DLSE”) was asked by an employer to clarify what the use of the word “day” meant for employees who work ten hour shifts, i.e. more than the traditional eight-hour work day. The DLSE found that such employees would be entitled to the wage they normally earn, meaning for those employees a day would mean ten, as opposed to eight hours, entitling them to an additional two hours of leave.

On Friday, August 21, 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld the U.S. Department of Labor’s (“DOL”) 2013 rule extending FLSA overtime and minimum wage protections to employees of home health care agencies who provide “companionship services” or live-in domestic care. The rule modified an exemption that was part of a 1974 amendment to the Fair Labor Standards Act (“FLSA”) that required domestic service workers to receive overtime and minimum wage, but excluded from those requirements employees who provide companionship services or live in the home where they work. Under the 2013 rule, the exemption for companionship services and live-in care only applies to workers employed by individuals or families who are receiving the care, not to employees of third-party home care providers. The 2013 rule also narrowed the definition of companionship services. Specifically, a worker only falls under the companionship exemption if the worker is employed directly by members of a household where the worker provides “fellowship and protection” (i.e. socializing with and monitoring the safety of elderly or infirm people) or if the worker provides daily living assistance, such as dressing and grooming, in conjunction with fellowship and protection, but does not spend more than twenty percent of their time providing such assistance.

On August 12, 2015, the Fifth Circuit held that an unaccepted Rule 68 offer of judgment to a named plaintiff in a class action does not render the plaintiff’s claim moot. In Hooks v. Landmark Indus., Inc., No. 14-20496 (5th Cir. 2015), the Fifth Circuit joined the minority of Circuit Courts—Second, Ninth, and Eleventh Circuits—and held that an unaccepted Rule 68 offer is a legal nullity, with no operative effect. The majority of the Circuit Courts to decide this issue —Third, Fourth, Sixth, Seventh, Tenth, and Federal Circuits—have all held that a complete Rule 68 offer moots an individual’s claim.

In its recent decision in David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases.

More and more employers are faced with the following question -- can a transgender employee use the restroom associated with his or her gender identity? According to federal governmental agencies, the answer seems to be yes.

In American Baptist Homes of the West d/b/a Piedmont Gardens (“Piedmont Gardens”), 362 NLRB 139 (June 26, 2015), the NLRB overruled longstanding precedent protecting the confidentiality of employee witness statements and adopted a new rule that balances the union’s need for the witness statement with the employer’s “legitimate and substantial confidentiality interests.” Since 1978, employee witness statements received by employers have been automatically exempt from disclosure to unions, no matter the circumstances. Now, as a result of Piedmont Gardens, an employer who cannot establish that it has a legitimate confidentiality interest that outweighs the union’s interest must disclose witness statements to the union in full. This will likely force employers to change the way they conduct investigations.

On July 15, 2015, the Department of Labor (“DOL”) issued guidance which it claims is designed to reduce the misclassification of employees as independent contractors under the Fair Labor Standards Act (“FLSA”). This guidance boldly claims that “most workers are employees under the FLSA’s broad definitions.” Based on this guidance, the DOL will likely aggressively argue that workers are employees subject to the FLSA – not independent contractors.

On July 13, 2015, California Governor Jerry Brown signed AB 304 amending the Healthy Workplaces, Healthy Families Act of 2014 clarifying certain terms of the law, effective immediately upon his signature.  The amendments overall make the law easier to implement and have answered many questions employers have had while preparing to meet the requirements of the original law’s effective date of July 1, 2015.  The following is a summary of the key changes to the law.

In a closely watched case, Glatt v. Fox Searchlight Pictures, Inc. (decided July 2, 2015), the Second Circuit rejected the Department of Labor’s (“DOL”) intern test under the Fair Labor Standards Act (“FLSA”), and adopted a balancing test that focuses on whether the employee or the employer is the primary beneficiary of the relationship (“primary beneficiary test”).  This is important because interns are not considered employees, and thus, are exempt from the minimum wage and overtime provisions of the FLSA.

Yesterday, the Department of Labor (“DOL”) issued a proposed rule that is expected to significantly increase the number of employees who are eligible for overtime.  The proposed rule increases the minimum salary threshold for exempt workers from the current level of $23,660 to $50,440.  The rule applies to the FLSA’s executive, administrative, professional, and computer employees exemptions, but not the outside sales exemption which does not have a salary basis requirement.

A recent decision from the California Labor Commissioner’s Office found that a former Uber driver was an employee of the company, not an independent contractor as the firm has labeled its motorists.  The implications for Uber, as well as other companies with similar business models, could be far-reaching.

As we previously discussed, employers continue to grapple with the workplace effect of medical marijuana laws (enacted in twenty-three states and the District of Columbia), as well as the recreational marijuana laws of Colorado, Washington, Oregon and Alaska. Notwithstanding these laws, marijuana remains illegal under the federal Controlled Substances Act, and all courts to have addressed the issue thus far have held that employers may continue to insist on a drug-free workplace, conduct drug tests, and take adverse employment action based on positive drug tests. 

State legislation concerning employee privacy in social media continues to grow with six states passing such legislation in 2014, including Tennessee, Louisiana, New Hampshire, Oklahoma, Rhode Island, and Wisconsin. As discussed here, these laws focus on an employee’s right not to disclose personal social media passwords to an employer, as well as prevent employers from requiring access to content not available to the general public.

The Supreme Court recently held in EEOC v. Abercrombie & Fitch Stores, Inc. that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even where the applicant has not informed the employer of his need for an accommodation.

The U.S. Supreme Court refused on Monday to take up a challenge to the California Supreme Court’s holding that California Private Attorney General Act (“PAGA”) claims cannot be waived in employment arbitration agreements containing a class action waiver.

As the national debate regarding rights for same sex couples continues, more and more states are granting marital rights to members of the same sex.  Although we are only in the second quarter of 2015, five states have either passed legislation or have high court rulings that expand the rights of same sex couples.  And, in the coming weeks, the U.S. Supreme Court will rule upon issues of marriage equality in Obergefell v. Hodges, eventually rendering a decision that may have significant impact on both federal and individual state laws.

Under the National Labor Relations Act (“Act”), employers usually may not discipline employees for engaging in certain collective or concerted activity, including comments regarding terms and conditions of employment, unless the employee’s behavior is so outrageous that it loses the protection of the Act.  But how far can employees push the boundary before their conduct will be found indefensible?

The Fourth District California Court of Appeal recently held that a Department of Corrections employee’s claim that he was constructively discharged after being discriminated against on the basis of his religion—“Sun Worshipping Atheism”—was properly dismissed.  Marshel Copple is the founding and only member of a religion he calls Sun Worshipping Atheism, the core tenets of which include: praying in the sun; taking in fresh air on a daily basis; sleeping at least 8 hours per day; eating and drinking when necessary; frequent exercise; daily rest; and engaging in frequent social activities.

On April 1, 2015, the U.S. Court of Appeals for the Seventh Circuit decided Alvarado v. Corporate Cleaning Serv., Inc., 2015 WL 1456573 (7th Cir. Apr. 1, 2015), an important decision interpreting the Fair Labor Standards Act’s overtime requirements.  The plaintiffs in the case were twenty-four (24) window washers employed by a company servicing commercial skyscrapers in the Chicago area.  The plaintiffs argued they had not been paid certain overtime wages under the Act.  The company, CCS, admitted it had not paid overtime, but argued that an exemption applied in the case to the FLSA’s overtime requirements.

On April 3, 2015, Virginia Governor Terry McAuliffe signed an Executive Order that “bans the box” and prohibits Virginia agencies, boards, and commissions from asking questions about an applicant’s criminal history on employment applications.

On April 1, 2015, the US Securities and Exchange Commission brought its first enforcement action against a company for asking employees to agree to confidentiality terms during internal investigations.

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A California appellate court recently invalidated an arbitration agreement that an employee had voluntarily entered into on the basis that it contained an unenforceable waiver of the employee’s claims under the California Private Attorneys General Act (“PAGA”) and, under the parties’ agreement, that provision could not be severed.

The DOJ announced last November that it again was delaying the target date for publishing its proposed website regulations for state and local governments to December 2014, and its proposed website regulations for public accommodations until June 2015.  Next, without further comment, the DOJ failed to make its December 2014 deadline for its state and local government regulations.  Given that the state and local government regulations deadline was missed, and that the DOJ has not yet submitted its public accommodations regulations to the federal Office of Management and Budget for required review and approval, it is virtually certain that the June 2015 deadline for public accommodations regulations will be missed as well.  Bottom line – affected businesses won’t see the DOJ’s new website accessibility regulations anytime soon.

As we previously reported, federal courts around the country have slowly begun to take a more flexible approach to evaluating the enforceability of private FLSA settlement agreements, calling into question the widely-held, decades-old view that settlements of FLSA claims are unenforceable unless they are approved by the DOL or a court.  Last month, the U.S. District Court for the Western District of Arkansas joined this slowly growing movement, holding that in individual FLSA lawsuits, court approval of the FLSA settlement agreement is not necessary if all parties are represented by counsel.

On February 20, 2015, a unanimous panel of the Fourth Circuit affirmed the exclusion of expert testimony by EEOC expert Kevin Murphy and the grant of summary judgment against the EEOC in its suit challenging Freeman’s use of credit and criminal background checks in the hiring process.  Although the Fourth Circuit’s decision expressed no opinion on the merits of the EEOC’s claim, the court found summary judgment was justified because the “sheer number of mistakes and omissions” in Murphy’s analysis rendered it unreliable.  While the court’s published opinion cited the ...

The U.S. Supreme Court is considering a case that could have important implications to disparate impact analysis, including on criminal background checks.  The case also foreshadows further challenges from the Texas Attorney General to aggressive positions taken by federal enforcement agencies in regard to disparate impact.  The case is Texas Department of Housing & Community Affairs, et al., v. The Inclusive Communities Project, Inc., Case No. 13-1371, and is being argued by the Texas Attorney General.

“Ban the Box” Laws

At least thirteen states, the District of Columbia, and almost 100 cities and counties have passed so-called “ban the box” laws, which restrict the scope of permissible investigations into job applicants’ criminal history, and, in some cases, the timing of such inquiries.

The San Francisco Board of Supervisors recently enacted two ordinances – which are being called the “Retail Workers Bill of Rights” – that provide extensive new protections to employees of “formula retail establishments” in San Francisco.  The new ordinances regulate how covered employers manage their workers’ schedules and impose additional financial and administrative burdens on those employers.

Twenty-three states and the District of Columbia have enacted laws which decriminalize the use of marijuana for medical purposes.  Under those statutory schemes, individuals with qualified medical conditions may become registered cardholders and obtain cannabis for medical purposes, often from state-regulated dispensaries.  These developments present an array of new challenges for employers to navigate.

On December 22, 2014, the U.S. District Court for the District of Columbia vacated a new U.S. Department of Labor (DOL) regulation, scheduled to take effect on January 1, 2015, which eliminated an exemption from the Fair Labor Standards Act (FLSA) for employees who provide home companionship and live-in domestic services. Home Care Ass'n of Am. v. Weil, No. 14-cv-967 (D.D.C. Dec. 22, 2014). The DOL's new regulation was controversial not only because it reversed years of precedent under the FLSA, but because many questioned whether the DOL had exceeded its authority in promulgating this regulation.

The Florida Department of Economic Opportunity (“DEO”) announced that the state’s minimum wage of $7.93/hour will be increased to $8.05/hour beginning January 1, 2015.  The minimum wage for tipped employees will correspondingly increase from $4.91/hour to $5.03/hour, with the employer’s maximum tip credit remaining at $3.02/hour.  The DEO has also issued an updated “Notice to Employees” poster which Florida employers are required to post in addition to the federal minimum wage poster as of January 1, 2015.

Minimum wage increases have experienced much activity in ...

As is often the case, the coming new year brings a slate of new requirements for California employers to grapple with. Employers should have these developments on their radar to ensure compliance in 2015 and beyond.

In Purple Communications, Inc., a divided National Labor Relations Board held that employees have the right to use their employers’ email systems for statutorily protected communications, including self-organization and other terms and conditions of employment, during non-working time.  In making this determination, the Board reversed its divided 2007 decision in Register Guard, which held that employees have no statutory right to use their employer’s email systems for Section 7 purposes.

On December 9, 2014, the Supreme Court ruled in Integrity Staffing Solutions, Inc. v. Busk that the time spent waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act (“FLSA”).  U.S. Supreme Court, No. 13-433.  The case involved hourly temporary staffing-agency warehouse workers who retrieved products from warehouse shelves and packaged the products for delivery to Amazon.com customers.  Before leaving the warehouse each day, workers were required to undergo a security screening involving the removal of wallets, keys, and belts from their persons and passing through metal detectors.

Integrity Staffing Solutions v. Busk
Oral argument was heard on October 8, 2014.  This case will resolve a circuit split on whether time spent by warehouse workers going through security is paid time.  The Fair Labor Standards Act, as amended by the Portal to Portal Act, does not require an employer to compensate for activities that are preliminary or postliminary to their principle work.  29 U.S.C. §254(a)(2).  The district court dismissed plaintiffs’ claims, but the Ninth Circuit ruled against Integrity Solutions, a contractor to Amazon.com, holding that going through security was an “integral and indispensable” part of the shift and not a non-compensable postliminary activity.  The Second and Eleventh Circuits previously held that time in security screening is not compensable time.  Interestingly, the U.S. Department of Labor filed an amicus brief on the side of Integrity Staffing.

Last month, the voters of Massachusetts passed Ballot Question 4, which entitles all Massachusetts employees to earn and use sick leave (time).  In doing so, Massachusetts became the third state to guarantee sick leave, following California and Connecticut.  The Massachusetts law takes effect on July 1, 2015.

On November 12, 2014, the Ninth Circuit held  that sufficient specificity in pleading is required under the Fair Labor Standards Act (FLSA) in Greg Landers v. Quality Communications Inc.  The Ninth Circuit affirmed the dismissal of a proposed overtime class action.  While this was an issue of first impression for the Ninth Circuit, the decision falls in line with similar rulings made by the First, Second and Third Circuits and disagrees with the Eleventh Circuit holding that conclusory allegations that merely recite the statutory language are adequate.

Fears of a worldwide Ebola pandemic appear to have abated, but the tension between workplace safety and employee privacy, thrown into relief by this health emergency, remains an issue relevant to all employers.

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On November 6, 2014, the Eleventh Circuit reined in the Equal Employment Opportunity Commission’s (EEOC) use of a broad administrative subpoena in an investigation of an individual charge of discrimination.  The case is EEOC v. Royal Caribbean Cruise Lines Ltd.

On October 1, 2014 the Los Angeles City Council voted again to require large hotels to pay workers a minimum wage of $15.37, exclusive of gratuities, bonuses, or service charge distributions after first passing the bill 12-3 on September 24, 2014.  (A second vote was required under Los Angeles City Council rules because the first vote was not unanimous.)  Assuming Mayor Garcetti signs the bill, which he has reportedly already promised to do, the bill will go into effect on July 1, 2015, applying first to hotel employees at hotels with 300 or more guest rooms and then, on July 1, 2016, expanding its reach to hotel employees employed by hotels with 150 or more guest rooms.

Less than two months ago, on July 29, 2014, the National Labor Relations (NLRB) made an announcement that it intends to hold franchisors legally responsible for unfair labor practices committed by its franchisees.  A recent Fifth Circuit opinion follows this trend by potentially expanding the number of discrimination and harassment suits corporate parent franchisors may face for discrimination and harassment committed by franchisees. EEOC v. Simbaki, Ltd.

The proposed rule will likely increase the cost of defending against equal pay cases for all employers, not just government contractors and subcontractors.

First appeared in the September 23, 2014, edition of InsideCounsel

On the morning of September 10, in a signing ceremony held in Los Angeles, Governor Jerry Brown officially signed AB 1522 into law.  This law makes California the second state to guarantee paid sick leave to employees. Statewide studies reported that 44% of employees in the state of California did not have access to paid sick leave. This will change under the new law for the vast majority of these approximately 6.5 million employees.

Discover how the use of criminal background checks in the hiring process is creating an increasing exposure to liability. The Equal Employment Opportunity Commission (EEOC) is aggressively pursuing this issue to ensure the practice does not have a disparate impact on minority applicants. Additionally, plaintiffs' class action attorneys are pursuing employers nationwide for failing to conform their background check process with the dictates and protections of the federal Fair Credit Reporting Act. This webinar will highlight lessons learned in the trenches, and give insights on how to properly handle the sensitive use of criminal background check information.

The EEOC and the Mexican Ministry of Foreign Affairs recently signed a National Memorandum of Understanding (MOU). The purpose of the MOU, according to an EEOC press release, is to strengthen the collaborative efforts of the United States and Mexico to inform immigrant, migrant and Mexican workers of their rights under the EEOC’s non-discrimination laws. The MOU is also directed at employers, aiming to provide guidance on their responsibilities under the same laws.  The MOU was signed in both English and Spanish by EEOC Chair Jacqueline A. Berrien and Ambassador Eduardo Medina Mora, at the EEOC headquarters in Washington, D.C.

Executive Order 13672 went into effect on July 21, 2014 and amended Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes.  Executive Order 13672, however, applies only to contracts entered on or after July 21, 2014.  The Office of Federal Contract Compliance Programs (OFCCP) has now issued Directive 2014-02, which interprets the prohibition against sex discrimination in Executive Order 11246 to include discrimination on the basis of gender identity and transgender status.  This means that contractors and subcontractors with contracts that predate July 21 can still be held liable for discrimination on the basis of gender identity and transgender status.

A new law recently signed by Massachusetts Governor Deval Patrick mandates that public and private employers with 50 or more employees grant up to 15 days of unpaid leave in any 12-month period if the employee or a covered family member of the employee is a victim of abusive behavior.  The bill was signed into law on August 8 and became effective immediately.  Covered employers are required to notify employees of their rights and responsibilities under the law.

On August 11, 2014, New Jersey’s Governor Chris Christie signed into law the “Opportunity to Compete Act.”  Beginning on March 1, 2015, employers will be prohibited from publishing advertisements providing that the employer will not consider any applicant with an arrest or conviction record, and more importantly, employers will be prohibited from inquiring about applicants’ criminal records “during the initial employment application process,” orally or on job applications.  “Initial employment application process” is defined as the period beginning with the initial inquiry about prospective employment until the employer has conducted a first interview, determined the applicant is qualified, and selected the applicant as the employer’s first choice to fill the position.  If an applicant voluntarily discloses information regarding a criminal record, the employer may inquire about it.

Unpaid interns have increasingly become a hot topic among lawmakers and courts.  Last week, New York Governor Andrew Cuomo signed into law legislation which prohibits New York State employers from discriminating against, or sexually harassing, unpaid interns.  New York State enacted this legislation only a few months after New York City passed a law which prohibits discrimination against unpaid interns.  New York City unanimously enacted its legislation in response to a district court ruling in October 2013, which found that an intern could not proceed with a sexual harassment claim because she was unpaid, and therefore, she was not entitled to protections under Title VII or the New York City Human Rights Law.  (Wang v. Phoenix Satellite Television US, Inc., 976 F. Supp. 2d 527 (S.D.N.Y. 2013)).  Although few jurisdictions currently offer unpaid interns protection from discrimination or sexual harassment (only New York, Oregon and Washington, D.C.), legislators in New Jersey and California have introduced bills which would grant unpaid interns these same protections.  The California bill has already passed the State Assembly and is being reviewed by the State Senate.

Illinois recently joined a growing number of states and municipalities that have passed “ban the box” laws regulating when employers can inquire into an applicant’s criminal history. 

On July 21, President Obama signed an Executive Order adding sexual orientation and gender identity to the list of protected categories included in Executive Order 11246, originally issued by President Johnson in 1965.  E.O. 11246 now prohibits federal contractors from discriminating against employees or applicants for employment on the basis of race, color, religion, sex, national origin, sexual orientation or gender identity.

In Enforcement Guidance issued last week, the Equal Employment Opportunity Commission took the position that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities.

On July 14, 2014, the Council of the District of Columbia (“D.C. Council”) unanimously voted to “ban the box,” approving a bill that will restrict when an employer may ask a job applicant about his criminal background.  The bill will now go to Mayor Vincent Gray for his signature, and then to Congress for approval.

On June 23, 2014, the California Supreme Court announced a landmark ruling that arbitration agreements with mandatory class waivers are generally enforceable while carving out one notable exception.  That exception consists of representative claims brought under the Private Attorneys General Act (PAGA) which is unique to California.

In Euchner-USA, Inc. v. Hartford Cas. Ins. Co., No. 13-2021-cv, 2014 U.S. App. LEXIS 10797 (2d Cir. June 10, 2014), the United States Court of Appeals for the Second Circuit found that an insurer must defend its insured in a case alleging ERISA violations because the facts alleged (as opposed to the embedded legal conclusions) created a reasonable possibility of coverage under the general liability policy’s employee benefits coverage part. Central to the court’s decision was its finding that Euchner’s alleged misclassification of the plaintiff as an independent contractor ...

On February 12, 2014, President Obama announced Executive Order 13658, “Establishing a Minimum Wage for Contractors.”  The order seeks to raise the hourly minimum wage paid to workers performing services on covered Federal contracts to: (i) $10.10 per hour, beginning January 1, 2015; and (ii) beginning January 1, 2016, and annually thereafter, an amount determined by the Secretary of Labor in accordance with the Order.

Consistent with a trend in assailing employers’ workplace policies, the NLRB recently struck down nine employee policies, and  the confidential information and non-disclosure agreement of Hoot Winc LLC (d/b/a Hooters), all of which employees signed upon initial hiring.  NLRB Judge William Nelson Cates found that the policies at issue, which dealt with discussion of tips, employee conduct, disclosure of company material and business affairs, and social media, were over-broad and interfered with employees’ rights to engage in  activity protected by Section 7 of the National Labor relations Act (“Act”).  Likewise, the judge found that the restaurant chain’s non-disclosure agreement also infringed on employees’ Section 7 rights.

Last week, the EEOC invited public comment on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973, which governs the federal government’s employment of people with disabilities. Specifically, the EEOC aims to clarify what it means for the federal government to “be a model employer of individuals with disabilities” pursuant to Section 501.  While any revised regulations will only apply to the public employees, how the EEOC defines a “model employer” could impact future interpretations of the Americans with Disabilities Act (ADA), which apply to most private employees. To the extent any resulting regulation is viewed as reasonable, it may have implications for private employers as courts often look to case law interpreting the Rehabilitation Act to assist in interpreting the ADA.

In the past few months, the EEOC has filed two federal lawsuits challenging what might be considered “run of the mill” separation agreements. Such separation or severance agreements have become a relatively common practice when the employment relationship is terminated, as the employer can offer a severance payment in exchange for a broad release of potential claims. These agreements provide employers with the finality that is necessary for making business decisions, risk assessments, long-term plans, and the like. In cases in which there are potentially viable claims, settling them immediately avoids the time and expense of litigation. And even if the employee would not have had any viable claims against the employer, merely avoiding the possibility of litigation and its costs is usually well worth the amount of the severance payment. The indication that EEOC is taking a closer look at these agreements is thus concerning to employers and the lawyers who represent them.

On April 9, 2014, the Sixth Circuit of Appeals not only affirmed summary judgment in EEOC v. Kaplan Higher Education Corp., et al. but also chastised the EEOC for applying a flawed methodology in its attempts to prove that using credit checks as a pre-employment screen had an unlawful disparate impact against African-American applicants.

You're Invited: Pay Equity Under The Obama Administration

Pay equity for women and minorities has been a priority throughout President Obama’s administration. President Obama has wielded his Executive power with increasing frequency in 2014. President Obama recently issued an Executive Order and a Presidential Memorandum that target the pay practices of federal contractors. Both actions are designed to increase transparency in employee compensation. They may have significant consequences for covered employers.

On April 22, 2014, the Sixth Circuit reversed the district court’s dismissal of an ADA case against Ford Motor Company, finding that there was a fact issue as to whether telecommuting most days is a reasonable accommodation. In EEOC v. Ford Motor Company (No. 12-2484), the court addressed an increasingly common, yet persistently difficult, question:  when must employees be allowed to work remotely, and when is physical, in-person attendance an essential function of a job?

During his most recent State of the Union Address on January 28, 2014, President Barack Obama stated that one of his top priorities in the coming year was to address what he described as “stagnant wages.”  More importantly, he warned Congress that if they did not take steps to tackle the issue soon, he was prepared to attempt to address the issue unilaterally through exercise of his executive power.

Jurisdiction

Jurisdiction may be the most important factor organizations should take into consideration when offshoring.  Some countries do not recognize certain U.S. legal doctrines, such as confidentiality agreements, and without proper jurisdiction an organization may be unable to enforce its contract with a vendor.

When selecting an offshore country, organizations should consider whether the country permits a choice of law provision which would allow courts to apply U.S. law.  If the country permits choice of law provisions, the provision should be well defined in the contract so that there is no ambiguity.  Organizations should also consider working with counsel in the offshore country to assist with legal intricacies, even if a United States choice of law provision is permissible.

On April 8, 2014, in recognition of National Equal Pay Day, President Obama continued to advance his wage equality agenda by focusing on wage transparency through Executive Order on Non-Retaliation for Disclosure of Compensation Information (“Executive Order”) and a Presidential Memorandum entitled "Advancing Pay Equality Through Compensation Data Collection" (“Presidential Memorandum”).

We have been reporting in this space for the better part of a year about the uptick in NLRB enforcement activity in non-union workplaces.  One of the Board’s most noteworthy – and controversial – areas of focus has been on the question whether employer confidentiality rules unlawfully chill protected concerted employee activity under the National Labor Relations Act.  Last week, for the first time, a U.S. Court of Appeals agreed with the Board that certain confidentiality restrictions can have such an effect.

On February 14, 2014, San Francisco passed the San Francisco Fair Chance Ordinance and became the latest national municipality to “ban the box” and limit the use of criminal background checks in employment hiring decisions.  The deadline for San Francisco employers to comply with the San Francisco Fair Chance Ordinance is August 13, 2014.  The “ban the box” campaign continues to gain momentum – San Francisco joins other cities (Buffalo, Newark, Philadelphia, and Seattle) and states (Hawaii, Massachusetts, Minnesota, and Rhode Island) who do not allow employers to ask ...

On March 10, 2014, the Federal Trade Commission (“FTC”) and the Equal Employment Opportunity Commission (“EEOC”) issued joint guidance regarding the use of background checks.  The FTC, which enforces the Fair Credit Reporting Act, monitors compliance with how background checks are conducted.  The EEOC, which enforces federal laws against discrimination, seeks to ensure that the use of background checks does not disparately impact protected groups.

The national trend in increased workplace regulation continues on April 1, as New York City’s Earned Sick Time Act goes into effect. 

Although most large employers provide paid sick leave to employees, those employers in Gotham now don’t have a choice. The requirement applies to  any employer with at least five employees.

On March 6, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) released guidance pertaining to employers’ responsibilities to accommodate religious dress and grooming in the workplace.  

The guidance provides explanation and analysis concerning an employer’s responsibilities under Title VII to “make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business.”

President Barack Obama is expected today to direct the Department of Labor to revise its wage-payment regulations so that more workers will receive overtime compensation. 

Currently, the Fair Labor Standards Act provides an overtime exemption for categories of salaried employees who receive at least $455 a week.  President Obama intends to increase the weekly $455 salary threshold so that employers must pay affected employees a higher salary, cut their hours, or pay them overtime for work in excess of 40 hours a week.

Recently, the Maryland Senate passed a bill, called the Fairness for All Marylanders Act of 2014, that would prohibit discrimination against transgender individuals in employment and other areas.  By doing so, the state moves closer to making transgendered individuals a protected class.  The bill must still pass the House of Delegates before it may be signed into law.  Four localities in Maryland have already passed laws barring discrimination against individuals on the basis of gender identity; Baltimore City and Baltimore, Howard and Montgomery counties.  If the bill is enacted, Maryland would join over one dozen other states that have similarly banned discrimination on gender identity, including such states as California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.

On Tuesday, the United States Supreme Court held that the whistleblower protections that apply to employees of publicly traded companies under Section 1514A of the Sarbanes-Oxley Act, also  extend to employees of private contractors and subcontractors that serve those public companies.

Earlier this month, the Equal Employment Opportunity Commission released its fiscal year 2013 enforcement and litigation statistical report.  Each year, the EEOC publishes a comprehensive set of data tables which contain statistics on topics such as numbers of charges filed, types of charges filed, litigation and resolution numbers, and a myriad of other tables that provide insight into the agency’s actions over the 12-month period.

On November 4, the state of Texas sued the Equal Employment Opportunity Commission and Jacqueline A. Berrien (in her official capacity as chair of the EEOC), requesting a federal district court to declare invalid the EEOC’s enforcement guidance on employers’ use of arrest and conviction records and to enjoin the EEOC from using this guidance against the state and its agencies. Texas v. EEOC, No. 5:13-cv-00255-C (N.D. Tex.).

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While much attention has been paid this year to the EEOC’s agenda and litigation over criminal background checks (the agency asserts such background checks have a disparate impact on minority groups), a parallel challenge kept pace in the form of private class action litigation under the Fair Credit Reporting Act (“FCRA”). 2013 saw a number of significant class action settlements against both employers and consumer reporting agencies (“CRAs”) for alleged violations of the Act in the use of criminal background checks:

In several recent cases in California, courts have applied Brinker Restaurant Corp., et al. v. Superior Court to reverse trial court decisions denying class certification.  Brinker is the ground breaking case in California where the California Supreme Court held that employers are only required to provide the opportunity for employees to take 30 minute meal breaks, but are not required to ensure those breaks are actually taken.  The Brinker court also held that where an employer has a uniformly-applied policy that is unlawful, class certification may be appropriate.  The recent ...

Employers across the Country are relying on Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 to fight class certification or to file decertification motions.  Many are finding success, and for good reason.  Dukes is a major obstacle to class certification.  However, in a recent California appeals decision, Williams v. Superior Court (Allstate Insurance Company), December 6, 2013, Second District, Div. Eight, 2013 S.O.S. B244043, the appellate court found that the trial court abused its discretion when it decertified a class based on Dukes.  The trial court found that Dukes

Employers' use of criminal background checks in the hiring process is creating growing exposure to liability on several fronts.

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The “ban the box” movement continues to sweep through state legislatures.  These laws, which vary in terms of scope and detail, generally prohibit employers from requesting on applications information about applicants’ criminal histories.  Recent legislation in two states applies “ban the box” prohibitions to private employers in the state.

More than three years after first announcing that it was considering issuing regulations applying the Americans with Disabilities Act to websites, the US Department of Justice (DOJ) appears on the verge of announcing its proposed rules for website accessibility. While the DOJ originally stated that it anticipated issuing its Title II website accessibility rules for websites operated by state and local governments by November 2013, it now expects to issue these rules by the end of the year. These proposed regulations will “expressly address the obligations of public entities to ...

On Wednesday the Supreme Court agreed to hear two cases involving religious objections made by corporations to a provision of the 2010 Patient Protection and Affordable Care Act (the “Affordable Care Act”), which requires employers to provide health insurance for employees that covers contraceptives.  The central issue in both cases is whether a secular for-profit corporation may be exempt from complying with the contraception mandate under the Constitution because of the owner’s religious views.

President Obama is not only focused on health care these days.  He is also focused on helping companies keep employees, rather than lay them off, during a tough economic time.  The federal government will actually supplement wages, in certain circumstances, to stop layoffs. In February of 2012, President Barack Obama signed into law the Middle Class Tax Relief and Job Creation Act of 2012.  The chief focus of the Act was extending tax cuts for the middle class.  However, the Act also made substantial revisions to the unemployment insurance system.  One of the key revisions was to provide substantial federal funding for the expansion of state short-time compensation (“STC”) programs, which are sometimes referred to as “work sharing” programs.

The EEOC recently settled a national origin discrimination case involving a “restrictive language policy” or “English-only rule.”  EEOC v. Mesa Systems, Inc., 2:11-cv-01201 (D. Utah 2013).  The employer agreed to pay $450,000.00 and to provide a variety of injunctive relief, including training, policy revisions, apologies, notice postings, and reporting to the EEOC.  The EEOC’s Strategic Enforcement Plan made it a priority to protect the most “vulnerable workers,” and Commissioner Jacqueline Berrien said the settlement is an important demonstration of a “renewed commitment” to that goal.  And, indeed: this settlement is the latest in a decade-long line of EEOC enforcement actions based on English-only rules.  See, e.g.: $2.44 million settlement with University of Incarnate Word (2001); $700,000 settlement with Premier Operator Services, Inc. (2000).

With the Americans with Disabilities Amendments Act (“ADAAA”) and its expansion of the definition of “disability,” some would argue that the focus should no longer be on whether someone meets the definition of a “disability.” The presumption being that it is much easier now to prove someone is “disabled” under the law. The Fifth Circuit Court of Appeals has recently issued a ruling contracting this assumption.

In a lawsuit filed in the United States District Court for the Northern District of Texas on November 4, 2013, Texas Attorney General Greg Abbott seeks injunctive and declaratory relief against the EEOC on the grounds that the agency’s April 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions “purports to preempt the State’s sovereign power to enact and abide by state-law hiring practices.”  In particular, the complaint argues against the EEOC’s prohibition against blanket “no felons” hiring policies.  The Texas AG’s complaint highlights key failures and shortcomings of the EEOC’s recent investigative actions, and provides detailed examples of the “real world” effect of the guidance on the state’s hiring decisions.

On October 7, 2013, the United States Court of Appeals for the Sixth Circuit upheld the imposition of fees and costs against the Equal Employment Opportunity Commission (“EEOC”) in EEOC v. Peoplemark, Inc., Case No. 11-2582, for knowingly pursuing a meritless claim in which the agency alleged that Peoplemark’s criminal background check policy had a disparate impact on minority job applicants.  The EEOC recently has moved aggressively to enforce its April 2012 guidance regarding the use of criminal background checks in hiring.  That guidance appears to suggest that any criminal background check policy may be vulnerable to an EEOC enforcement action under a disparate impact theory—regardless of its terms and the manner in which it is implemented—solely on the basis of national data that show disproportionate rates of incarceration for African-Americans and Hispanics.  However, the Peoplemark decision, of which the EEOC presently seeks en banc review, also heralds an emerging pattern of judicial skepticism towards the agency’s enforcement tactics and its efforts to pursue disparate impact claims premised solely on national statistical evidence that is unrelated to any specific employer practice.

Earlier this month, San Francisco became the nation’s first city to enact a flexible work-time law for employees.  In theory, the law provides relief to employees seeking changes in their work schedules to accommodate their needs to care for their children or elderly parents.

In a 2-1 decision, the Tenth Circuit reversed summary judgment in favor of the EEOC on its claim that Abercrombie & Fitch Stores, Inc. failed to provide an applicant with a reasonable religious accommodation and remanded the case for entry of judgment in favor of Abercrombie.

On October 2, 2013, New York City Mayor Michael Bloomberg signed into law an amendment to the city’s Human Rights Law (“NYCHRL”), expanding the scope of the pregnancy discrimination protections provided under the law.  Although discrimination on the basis of an employee’s pregnancy has long been prohibited under the NYCHRL, as well as under state and federal law, the new amendment makes it unlawful for an employer to refuse to reasonably accommodate “the needs of an employee for her pregnancy, childbirth, or related medical conditions.” 

On September 17, 2013, the U.S. Department of Labor (“DOL”) announced a final rule that will extend overtime and minimum wage protections to many direct care workers.  The rule is set to go into effect on January 1, 2015.

When the Fair Labor Standards Act (“FLSA”) was enacted, it did not protect workers employed directly by households in domestic service.  Congress amended the FLSA in 1974 to apply to employees performing household services in a private home.  However, that amendment did not apply to certain workers, such as domestic service workers employed to provide “companionship services” to elderly persons or persons with illnesses, injuries, or disabilities.  With the DOL’s new rule, many direct care workers, such as certified nursing assistants, home health aides, personal care aides, and other caregivers will be subject to the minimum wage and overtime requirements of the FLSA. 

Federal employees awoke Tuesday morning to discover that the government had shut down for the first time in 17 years after Congress failed to agree on a new budget or extend the current one in a session that went past midnight on Monday.  As a result, more than 800,000 workers across the country have been immediately furloughed, while approximately a million more will report to work without pay to perform operations that have been designated as essential. The Department of Labor and related agencies, including the National Labor Relations Board and Equal Employment Opportunity Commission, will maintain only a skeletal staff during the shutdown to perform tasks “involving the safety of human life or protection of property.”  These offices will continue to accept and docket administrative filings, but all other activities will be suspended until a budget or continuing resolution is passed by Congress.  As such, employers will enjoy a brief respite from the pressure of government investigations and inspections.

The U.S. District Court for the District of New Jersey recently ruled that non-public Facebook wall posts are protected under the Federal Stored Communications Act (the “SCA”) in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-CV-3305 (WMJ) (D.N.J. Aug. 20, 2013).  The plaintiff was a registered nurse and paramedic at Monmouth-Ocean Hospital Service Corp. (“MONOC”).  She maintained a personal Facebook profile and was “Facebook friends” with many of her coworkers but none of the MONOC managers.  She adjusted her privacy preferences so only her “Facebook friends” could view the messages she posted onto her Facebook wall.  Unbeknownst to the plaintiff, a coworker who was also a “Facebook friend” took screenshots of the plaintiff’s wall posts and sent them to a MONOC manager.  When the manager learned of a wall post in which the plaintiff criticized Washington, D.C. paramedics in their response to a museum shooting, MONOC temporarily suspended the plaintiff with pay and delivered a memo warning her that the wall post reflected a “deliberate disregard for patient safety.”  The plaintiff subsequently filed suit alleging violations of the SCA, among other claims.

On August 9, Secretary of Labor Thomas Perez issued an internal memo calling for the implementation of the Supreme Court’s landmark decision in United States v. Windsor.  In that case, the Court held that section three of the Defense of Marriage Act (“DOMA”), which limited the definition of marriage to “a legal union between one man and one woman,” violated due process and equal protection principles embodied in the Fifth Amendment.  The internal memo stated that the Department of Labor (“DOL”) will be removing references to DOMA from its correspondence, and will be working to ensure the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (“FMLA”).

In an Advice Memorandum released last month, the National Labor Relations Board (“NLRB”) Associate General Counsel’s office found that portions of a social media policy violated Section 7 of the National Labor Relations Act, which protects employees’ rights to “self-organiz[e], to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” 

A surgeon recently brought suit against his employer, in Staveley-O’Carroll v. Penn State Milton S. Hershey Medical Center, alleging that he was fired in violation of the Family and Medical Leave Act (“FMLA”).  No. 1:13-cv-01555-YK (M.D. Pa. filed June 18, 2013). Interestingly, the surgeon is not claiming that he was entitled to, requested, or took FMLA leave.  Rather, he claims that he was retaliated against for defending his secretary’s FMLA rights.