Wyatt Employment Law Report


President Trump Nominates Brett Kavanaugh to the Supreme Court: What Does This Mean for Employment Law?

By Thomas E. Travis

On July 9, 2018, President Trump nominated Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia to the Supreme Court.  If confirmed, Judge Kavanaugh will fill the seat recently vacated on July 31 by retiring Supreme Court Justice Anthony Kennedy.  Here’s what we know about Kavanaugh and how his appointment to the Court will impact emerging issues in labor and employment law.

Judge Kavanaugh has been a member of the D.C. Circuit for the past twelve years and has an extensive paper trail, especially with respect to reviewing administrative agency determinations.  He is generally perceived as contemplative and precise, with a reputation as a textualist and originalist jurist, meaning that he attempts to interpret legal texts as written and according to their original understandings at the time they were enacted.  The resulting consequence often finds Judge Kavanaugh skeptical of Continue reading


Supreme Court Hands Public Sector Unions Major Setback

By Michelle D. Wyrick

In a 5-4 decision, the United States Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 et al., held that non-union members cannot be compelled to pay agency fees to the union, delivering a blow to public sector unions.  In doing so, the Court overruled Abood v. Detroit Board of Education, a 41 year old decision.

Janus involved a dispute between an Illinois state employee, Mark Janus, and a union about whether the union was permitted to collect agency fees from him, even though Janus chose not to join the union and disagreed with many of its public policy positions, including the positions it took in collective bargaining.  Under Illinois law, state employees are permitted to unionize.  If a majority of the employees in a bargaining unit votes to be represented by a union, that union becomes Continue reading


Should Salary History be History? Circuit Court Holds Past Salary History Cannot Justify Unequal Pay

By Sharon L. Gold

In Rizo v. Yovino, the Ninth Circuit Court recently held that an employer cannot use an employee’s prior salary history as a ‘factor other than sex’ upon which a wage differential may be used under the Equal Pay Act.  The EPA prohibits employers from paying women less for the same job unless the difference is based on merit, seniority, quantity or quality of work or the catchall “any other factor other than sex.”  The court held that salary history was not a legitimate factor that was related to the job, and instead, employers should use factors such as experience, training, education or prior performance to set wages.  The en banc decision was unanimous.

This decision comes amid several states banning salary history as a permissible factor upon which to base pay.  According to the Department of Labor, women in the U.S. make on average 82 cents to a dollar of what men make in comparable jobs.  Proponents of banning the “salary history” question claim that Continue reading


Should Your Company “Ban the Box”?

By Lexy Gross

There’s a question on most job applications that will make a candidate sigh in relief or disappointment, with no middle ground: “have you ever been convicted of any misdemeanor, felony, or other crime?”  If you check the “yes” box, you know there’s little chance you’ll get a call back, much less an interview.

Of course, there are variations of this question, but regardless of its form, it’s led to an outcry from activists to “ban the box.”  Former President Barack Obama explained in 2015 that Americans who have paid their debt to society should have better access to a second chance in their job search.  In 2017, Kentucky Governor Matt Bevin challenged private employers to ban the box on their job applications after he signed an executive order stopping the practice in state agency hiring.  Some state legislatures and jurisdictions Continue reading


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Scotus Has Spoken: Arbitration Contracts Barring Class Actions are Lawful

By R. Joseph Stennis, Jr.

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.”

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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


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Federal Appellate Court Extends ADEA to Job Applicants

By Thomas E. Travis

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