Yesterday, in Lawson v. FMR LLC, a divided U.S. Supreme Court decided its first case addressing the whistleblower protections of the Sarbanes-Oxley Act (SOX). The question before the Court: do those protections extend only to the employees of public companies, or do they also reach the employees of contractors and subcontractors of public companies? You can see our prior posts on the case here (June 19, 2012), here (October 8, 2013), here (January 7, 2014), and here (January 28, 2014). Read More
The Securities and Exchange Commission recently weighed in on a whistleblower case pending in the Second Circuit, urging the court in Liu v. Siemens, A.G. to adopt the SEC’s interpretation of the Dodd-Frank Act’s anti-retaliation provision. If the Second Circuit agrees, its ruling would create a circuit split over whether Dodd-Frank protects from retaliation internal whistleblowers who do not make a report to the SEC, likely teeing up the issue for resolution by the Supreme Court. Read More
The Miami Dolphins recently have come under intense scrutiny amid allegations that coaches encouraged defensive guard Richie Icognito to bully teammate Jonathan Martin in an effort to “toughen” him up. The alleged bullying was so severe, including threats of violence and racially derogatory statements, that Martin left the team, the NFL launched an investigation, and the Dolphins suspended Incognito indefinitely. While it may have taken this locker room scandal to bring bullying into the public eye, the legal and practical ramifications of workplace bullying are common, and employers can learn many lessons from this case. Read More
On November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (“ENDA”), legislation that would prohibit workplace discrimination based on sexual orientation or gender identity. The ban would join similar federal workplace protections based on race, national origin, religion, gender, age, and disability. The issue now moves to the U.S. House of Representatives for consideration, where many experts believe the legislation faces an uphill battle. Read More
For the better part of the last decade, the Second Circuit routinely and consistently struck down class action waivers in arbitration provisions. As recently as March 2011, the Second Circuit appeared to have brought down the hammer even further, by stating in In Re: American Express Merchants’ Litigation (“AmEx”) that a mandatory arbitration provision—even one that includes an express “class action waiver”—is unenforceable to the extent it “effectively precludes any action seeking to vindicate [plaintiff’s] statutory rights.” Read More
Last week, in Irizarry v. Catsimatidis, Docket No. 11-4035-cv (July 9, 2013), the Second Circuit held that Gristedes Foods CEO—and current NYC mayoral candidate—John Catsimatidis faces personal liability for settlement payments of FLSA claims against his company. The Court determined that Catsimatidis’ active participation in the operation of the company qualified him as an “employer” under the FLSA and could therefore lead to personal liability. Read More
Resolving a split among the circuits, the U.S. Supreme Court held that a “supervisor” for Title VII harassment liability is limited to those who have the power to take a tangible employment action against the alleged victim (e.g., hire, fire, demote, promote, transfer, or discipline). Merely overseeing and directing the alleged victim’s daily work is insufficient to meet this heightened standard. Read More
The U.S. Supreme Court held on Monday that a plaintiff alleging retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) must prove that retaliation was the “but-for” reason for an adverse employment decision. The mixed-motive analysis, whereby a plaintiff need only show that the illegal reason played a part in the decision, now no longer applies to retaliation cases. Read More
A recent D.C. Circuit Court of Appeals decision striking down several recess appointments to the National Labor Relations Board has cast doubt over one of the NLRB’s most controversial decisions from 2012.
In Noel Canning v. NLRB, F. 3d (D.C. Cir. Jan. 25, 2013), the D.C. Circuit held that President Obama lacked constitutional authority to use recess appointments to name three new members to the NLRB because the vacancies did not arise, and the appointments were not made, during a “Recess of the Senate,” which is defined as “the period between sessions that would end with the ensuing session of the Senate.” Slip op. at 18; 39-40. As a result, the court held that the NLRB lacked a quorum when it decided the underlying case, rendering its decision void ab initio.
The holding in Noel Canning raises questions about the viability of In re D.R. Horton, Inc., 357 NLRB 184 – 2012, one of the most widely discussed NLRB decisions of 2012. In D.R. Horton, the Board held that arbitration clauses that prohibit employees from pursuing class or collective actions violate employee rights under Section 7 of the National Labor Relations Act (“NLRA”) to engage in protected concerted activity. D.R. Horton’s appeal will be heard by the Fifth Circuit on February 4.
D.R. Horton was decided the day before President Obama made the recess appointments at issue in Noel Canning. However, Craig Becker, one of the three NLRB members who decided D.R. Horton, was the subject of an earlier recess appointment in 2010. D.R. Horton filed a letter with the Fifth Circuit on January 29, 2013, arguing that the holding in Noel Canning should be applied to Becker’s appointment and render the decision void. The Fifth Circuit is expected to address this issue together with D.R. Horton’s existing arguments during oral argument on February 4.