In a narrow 5 – 4 ruling, the United States Supreme Court (“SCOTUS”) finally put to rest yesterday an antagonistic class action waiver issue that has been brewing in various federal circuit courts for the past six years. In the opinion, (written by Trump Administration appointee Justice Neil Gorsuch), the Court upheld the use and enforceability of class action waiver language contained in employment arbitration agreements. Relying heavily on the language contained in the Federal Arbitration Act (“FAA”), the Court reasoned that “Congress has instructed federal courts [by way of the FAA] to enforce arbitration agreements according to their terms – including terms providing for individualized proceedings.” The Court rejected the notion that arbitration agreements violate the ‘concerted activities’ clause of the National Labor Relations Act (“NLRA”) by concluding, “[the NLRA] does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act.”
Worksite Immigration Enforcement
By Glen Krebs
Seven months ago, U.S. Immigration and Customs Enforcement (“ICE”) Deputy Director Thomas Homan issued a directive that called for increased worksite enforcement investigations to ensure U.S. businesses maintain a culture of compliance. ICE recently announced that the agency’s Homeland Security Investigations (“HSI”) has already doubled the amount of ongoing worksite cases this fiscal year compared to the last fully completed fiscal year.
From Oct. 1, 2017, through May 4, 2018, HSI opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests, respectively. In comparison, for the entire 2017 fiscal year – from October 2016 to September 2017 – HSI Continue reading
Federal Appellate Court Extends ADEA to Job Applicants
On April 26, 2018, the U.S. Court of Appeals for the Seventh Circuit ruled that portions of the Age Discrimination in Employment Act (“ADEA”) protect job applicants, in addition to internal employees.
Dale Kleber, a 58-year old attorney applied for a legal position with CareFusion, a healthcare product company. The job posting called for a “business person’s lawyer” capable of “assum[ing] complex projects.” The position’s qualifications required “3 to 7 years (no more than 7 years) of relevant legal experience.” CareFusion reviewed Kleber’s application, but ultimately hired a 29-year old applicant. Kleber filed a charge of age discrimination regarding the 7-year maximum experience cap with the Equal Employment Opportunity Commission, who issued Kleber a right-to-sue letter in 2014.
In turn, Kleber Continue reading
Can Your Employees Bring Firearms to Work?
Guns-at-work laws generally limit a private employer’s ability to prohibit its employees from bringing concealed firearms to the workplace. These laws are state-specific, as there is currently no federal law that regulates weapons at private workplaces.
States that have statutory guns-at-work laws covering private employers include: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah, and Wisconsin.
States that do not have statutory guns-at-work laws covering private employers include: California, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maryland, Massachusetts, Michigan, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Virginia, Washington, West Virginia, and Wyoming.
What do guns-at-work laws do? Guns-at-work laws serve Continue reading
Workplace Romances: Avoiding Liability from Office Secrets
Spring has sprung. The birds are singing, the flowers are blooming. And some of your employees may be in the midst of budding romances – or continuing longtime relationships. A recent employee survey by Namely highlighted the prevalence and secrecy of office romances.¹ Forty percent (40%) of Namely’s survey respondents indicated that they had engaged in an intimate relationship with a coworker. However, less than 5 percent of all respondents stated that they would tell Human Resources if they were involved in a workplace relationship. Even if an employer’s policy required employees to report relationships to HR, only 42 percent said they would comply. (That 42 percent seems optimistically high, given the mere 5 percent of respondents who indicated they would tell HR in the first place.)
The take away – which may come as no surprise – is that employees have Continue reading
The Sixth Circuit Rules an Employer Violated Title VII by Terminating its Transgender Employee
On March 7, 2018, the United States Court of Appeals for the Sixth Circuit reversed a district court decision and ruled in favor of a transgender employee who claimed she was terminated by her employer based on her sex pursuant to Title VII of the Civil Rights Act of 1964. Aimee Stephens, formerly known as Anthony Stephens, worked as a funeral director at R.G. and G.R. Harris Funeral Homes, Inc. The funeral home had a dress code policy, requiring male employees to wear suits and female employees to wear skirts and business jackets. The funeral home provided free suits to the male employees, but did not (at least initially) provide female employees with any clothing to comply with the company’s dress code policy. Stephens informed the funeral home that she would be transitioning from male to female and therefore would begin to dress to be in compliance with the company’s dress code for females. Shortly thereafter, Continue reading
Retaliation Still the Most Filed Charge with the EEOC: How Employers Can Guard Against Costly Retaliation Claims
By Sharon Gold
The EEOC released its fiscal year charge data and for another year in a row, retaliation is the most filed charge. Behind retaliation are charges for race, disability and sexual discrimination. The full list of charge data is:
- Retaliation: 41,097 (48.8 percent of all charges filed)
- Race: 28,528 (33.9 percent)
- Disability: 26,838 (31.9 percent)
- Sex: 25,605 (30.4 percent)
- Age: 18,376 (21.8 percent)
- National Origin: 8,299 (9.8 percent)
- Religion: 3,436 (4.1 percent)
- Color: 3,240 (3.8 percent)
- Equal Pay Act: 996 (1.2 percent)
- Genetic Information: 206 (0.2 percent)
[These percentages add up to more than 100 because some charges allege multiple bases.]
Any employer who has been through litigation concerning a retaliation claim knows Continue reading
