Wyatt Employment Law Report


SCOTUS Declares Title VII Charge-Filing Requirement Is Not A Jurisdictional Prerequisite

By Noah Lewis, Wyatt Summer Associate

In a recent decision, the Supreme Court of the United States unanimously held that the Title VII charge-filing requirement is not a jurisdictional prerequisite, but a procedural prerequisite. In the June 3, 2019 decision, in the case of Fort Bend Cty., Texas v. Davis, 2019 WL 2331306 (2019), the Supreme Court addressed whether Title VII’s charge-filing precondition to suit is a jurisdictional requirement that can be raised at any stage of the proceeding, or if the precondition is a procedural prescription that is mandatory if timely raised but “subject to forfeiture if tardily asserted.” Davis, 2019 WL at 2. The Court held that the charge-filing precondition is “properly ranked among the array of claim-processing rules that must be timely raised to come into play.” Id. Continue reading


EEO-1 Reporting Deadlines Approaching

By Michelle Wyrick

With few exceptions, employers with 100 or more employees and certain government contractors are required to submit a workplace profile, broken down by race, sex, ethnicity, and job category, to the Equal Employment Opportunity Commission (“EEOC”) by May 31, 2019. This year, covered employers must also comply with a second deadline.  By September 30, 2019, EEO-1 filers must report W-2 wages and hours worked within 12 specific pay bands by race, gender and ethnicity to the EEOC.

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Proper Termination of H-1B Employee

By Glen Krebs

We have heard a lot recently about the H-1B CAP.  The U.S. Citizenship and Immigration Services (“USCIS”) just completed its lottery to select which H-1B visa applications it will review.  They will soon start to return the applications and fees for those cases that were not selected in the lottery.  Next year, the process will be different and less costly to employers.  Watch for the new instructions to come out later in the year.

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Effective June 27, 2019, Kentucky Employers with 15 or More Employees Have Expanded Accommodation Responsibilities and Notice Obligations

By Sharon Gold

The Kentucky Pregnant Workers Act (“the Act”), adopted in April, amends  the Kentucky Civil Rights Act (“KCRA”), and expands protections for pregnant workers in Kentucky.  The Act applies to  employers who have 15 or more employees within the state in each of twenty or more calendar weeks in the current or preceding calendar year and any agent of the employer.  It requires employers to provide reasonable accommodations, including but not limited to the need to express breast milk, to employees with limitations related to pregnancy, childbirth, or a related medical condition, unless it would pose an undue hardship on the employer.  A “related medical condition” includes, but is not limited to, lactation or the need to express breast milk for a nursing child.  The Act provides the following examples of reasonable accommodations: Continue reading


Department of Labor Weighs In In Favor of Gig Economy Employers

By Thomas Travis

On April 29, 2019, the Department of Labor issued an opinion letter pertaining to individuals providing services in the “unidentified virtual marketplace,” and placed a thumb on the scale in favor of their status as independent contractors, rather than employees. The “unidentified virtual marketplace,” also known as the “gig economy,” is commonly understood to be online or smartphone-based referral sources that connects providers directly to consumers for a vast array of services. The opinion letter—which is itself intended merely as guidance and not “binding” authority—concluded that providers accessing such an online referral source are more properly considered “independent contractors” of the online platform.

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Supreme Court to Address Circuit-Split Over LGBTQ Title VII Issues

By Jordan White

On April 22, 2019, the Supreme Court granted certiorari and consolidated three cases involving whether Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), prohibits employment discrimination based on an individual’s sexual orientation and transgender status. The three cases are: Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. 2018); and Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). In Zarda and R.G. & G.R., the Second and Sixth Circuits agreed that Title VII bars employment discrimination based on sexual orientation and transgender status, respectively, with the Eleventh Circuit holding otherwise in Bostock. Zarda may be the most interesting case of the three. There, the Second Circuit reversed itself in an en banc decision, and it exposed a public divide between the EEOC and the Department of Justice. Both federal agencies filed briefs in the case, with the EEOC arguing that Title VII does apply while the Department of Justice argued the contrary.

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Employers Beware: Kentucky Court of Appeals Rules that Employers Must Now Have Counsel in Unemployment Proceedings

By Mitzi Wyrick

In a ruling that will undoubtedly affect how employers choose to proceed with respect to unemployment claims, the Kentucky Court of Appeals held that employers must have counsel to represent them in referee hearings and before the Kentucky Unemployment Insurance Commission.  In Nichols v. Kentucky Unemployment Insurance Commission, et al., the Kentucky Court of Appeals reviewed a decision in which the claimant was denied unemployment benefits after his employment was terminated.  The claimant, Michael Nichols, was terminated by his employer, Norton Healthcare, Inc. (“Norton”), for failure to comply with instructions, falsification of records, and misfeasance of company resources.  After being fired, Nichols submitted an application for benefits saying that he had been terminated for lack of work.  Norton contested the claim.  The unemployment division determined that Nichols had been terminated for misconduct and had intentionally misrepresented this fact on his application for benefits.  Nichols appealed the decision to the referee.  An evidentiary hearing was conducted at which Norton was represented by a non-lawyer.  The referee affirmed and the decision was affirmed on appeal to the Commission and again at the Jefferson Circuit Court.

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