EEOC Rules that Sexual Orientation Discrimination is Sex Discrimination Under Title VII

On the heels of the landmark decision by the Supreme Court in favor of gay marriage, the EEOC held on July 15, 2015 that sex discrimination under Title VII includes discrimination on the basis of sexual orientation.  Even though the decision is not binding precedent in federal court, and runs contrary to a significant body of case law holding that Title VII does not prohibit discrimination on the basis of sexual orientation, it could be regarded by some courts as persuasive authority.  The decision could also have an impact on employers in the form of an increased number of administrative charges of discrimination filed with the EEOC based on sexual orientation, as courts determine whether to adopt the EEOC’s interpretation.

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Lawyers Entitled to Overtime Pay? Maybe So When Not “Practicing Law”

The Second Circuit revived an FLSA collective action filed by Michael Lola, an attorney licensed to practice law in California, who for fifteen months performed document review services for Skadden Arps, Slate, Meagher & Flom LLP (“Skadden”) though a staffing agency while living and working in North Carolina.  Lola alleged that these services did not constitute the “practice of law,” and that he was therefore eligible for overtime under the Fair Labor Standards Act.  Rejecting Lola’s arguments, a Southern District of New York judge dismissed the complaint on a Rule 12(b)(6) motion on the grounds that Lola was exempt from overtime.  However, the Second Circuit held that when accepting all of Lola’s allegations as true for purposes of a motion to dismiss, his work might not constitute the practice of law.

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Think Your Workers are Independent Contractors? Not So Fast Says the DOL

On July 15, 2015, the U.S. Department of Labor (“DOL”) issued an Administrator’s Interpretation that purports to clarify on one of the most challenging legal questions facing employers today:  are certain workers employees or independent contractors?  Notably absent from the guidance, however, is any specific reference to workers who provide services through “on-demand” companies like Uber, Lyft, and Airbnb who use technology to deliver traditional services more efficiently by connecting consumers directly with service providers.  This is surprising since it seems that the DOL’s renewed focus on misclassification has stemmed in large part from the slew of pending on-demand worker lawsuits in which the classification tests have proven very difficult to apply.

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California State Legislature Gives Employers Prescription(Rx) for New Sick Leave Law

On Monday, July 13, 2015, California Governor Jerry Brown signed a much anticipated “fix it” bill that amends the Healthy Workplaces, Healthy Families Act of 2014, clarifying the requirements of California’s sick leave law.

The fixes bring welcome clarity and revisions to key provisions that, for most employers, will make the law easier to administer. Yes, it’s two weeks late—the intent was for the bill to pass before the July 1 deadline for employers to implement the bulk of the original law’s requirements. But the delay was due in large part to several revisions that the legislature made in hopes of getting it right this time. And thanks to an urgency provision, the amendments go into effect immediately. The full text of the amendment (AB 304) is available here, but we’ve highlighted a few key provisions below. You should also visit our prior blogs on this subject here to make sure you’re keeping up with the feverish pace of things.

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“Unpredictable and Potentially Messy”?: NLRB Ruling Could Complicate Employers’ Workplace Investigations

In its June 26 split decision in American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers- West, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) (“Piedmont Gardens”), the National Labor Relations Board (“NLRB” or “Board”) adopted a new standard for union access to employers’ witness statements in discipline cases.  In so doing, the NLRB overruled the 37-year-old standard articulated in Anheuser- Busch, 237 NLRB 982 (1978), that provided a blanket exemption for the disclosure of witness statements.  Instead of a blanket rule, the majority followed the  Supreme Court’s 1979 decision in Detroit Edison v. NLRB, 440 U.S. 301 (1979), which requires a case-by-case balancing of the union’s need for the witness statements against the employer’s “legitimate and substantial confidentiality interests.”

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The Gay Marriage Decision: Support for Title VII Employment Discrimination Claims?

Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26th, the question remains how much the Opinion may impact Title VII employment discrimination claims.  Based on our reading of the Obergefell v. Hodges decision, and the many states that have passed legislation protecting employees from sexual-orientation discrimination, we recommend that employers revisit and update their anti-discrimination policies.

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To Pay or Not To Pay: The Second Circuit Rules on Unpaid Interns

In addressing a matter of first impression, the Second Circuit Court of Appeals set out a new standard to determine when an unpaid intern is deemed an employee for purposes of the Fair Labor Standards Act (“FLSA”) and thus entitled to compensation, including minimum wage and overtime, under the FLSA.  Two appeals were argued in tandem on this issue with the Second Circuit issuing an Opinion on July 2, 2015 in Glatt v. Fox Searchlight Pictures, Inc., and a Summary Order in Wang v. Hearst Corp.

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Show Me the Money: DOL Proposed Regulations Dramatically Expand Overtime Eligibility for White Collar Employees

After months of talk and speculation about new overtime regulations, on June 30, 2015, the United States Department of Labor (“DOL”) issued its proposed rule and request for comments on its “white collar exemption” regulations.  The so-called “white collar exemptions” – the executive, administrative and professional employees exemptions – were last revised in August 2004.  Assuming the regulations are revised in accordance with the DOL’s proposal, the DOL estimates that 4.6 million workers exempt under the current regulations would become entitled to overtime under the FLSA.  In addition, an estimated 36,000 employees who were previously considered “highly compensated” employees under the FLSA would no longer satisfy that definition.   Read More

More Headaches: Emeryville Enacts Paid Sick Leave & Minimum Wage Ordinance

Emeryville will join San Francisco, Oakland and other cities across the nation that have enacted paid sick leave ordinances.  On June 2, 2015, the city of Emeryville adopted its Minimum Wage and Paid Sick Leave Ordinance which goes into effect on July 1, 2015 (with enforcement starting July 2).  Yes, you read that right: it goes into effect only a month after it was adopted! Read More

It Pays to Play: Judge Finds Costs Still Recoverable By Prevailing Employers in FEHA Cases Post-Williams

On May 4, 2015, the California Supreme Court issued its decision in Williams v. Chino Valley Independent Fire District, holding that unsuccessful FEHA plaintiffs should not be ordered to pay the defendant’s ordinary litigation costs unless, “plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit” (also called “the Christianburg standard”). (2015) 61 Cal. 4th 97, 99-100.  Prior to Williams, the Christianburg standard applied when defendants sought attorneys’ fees after prevailing on the merits of a FEHA claim, but there was a split in authority regarding whether the higher threshold in Christianburg applied to awards of ordinary costs under California Code of Civil Procedure section 1032.  Williams resolved the split and held that FEHA constitutes an exception to section 1032 and that defendants must meet the higher threshold in Christianburg before the court can exercise its discretion in awarding costs.

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