On December 5, 2016, the Seventh Circuit affirmed dismissal of a complaint filed by two University of Pennsylvania track and field athletes against the National Collegiate Athletic Association, the university, and more than 120 other NCAA Division I universities and colleges alleging that student athletes are entitled to minimum wage under the Fair Labor Standards Act (“FLSA”). In Berger v. NCAA, the court held that student athletes are not “employees” within the meaning of the FLSA and thus, are not entitled to a minimum wage for their athletic activities. READ MORE
Mark Thompson is an associate in the New York office and a member of the employment law and litigation groups. Mark's practice focuses on employment litigation and counseling. He has significant experience litigating wage and hour, discrimination, harassment and trade secret issues in high-profile cases for clients in the venture capital, technology, financial services and media industries.
Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.
In addition to his litigation practice, Mark advises clients regarding a broad range of employment issues, including human resource policies and procedures, severance agreements and employee terminations.
Prior to joining Orrick, Mark was a judicial law clerk and gained experience litigating a wide range of civil and criminal cases.
Posts by: Mark Thompson
The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, imposes various obligations on employers with respect to members of the U.S. military returning to their civilian workplace. USERRA differs from other employment laws (e.g., Title VII) in multiple respects. For example, USERRA applies to all public and private employers, irrespective of size. Therefore, “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a). In addition, USERRA contains an “escalator” requirement that returning service-members are reemployed in the job that they would have attained had they not been absent for military service with the same seniority, status, and pay, as well as other rights and benefits determined by seniority. See 20 C.F.R. § 1002.191. Also, USERRA has no statute of limitations of any kind for claims that accrued after October 10, 2008 (and claims that accrued after October 10, 2004 probably are timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.
Another distinction is that USERRA modifies at-will employment by creating a “for cause” standard of discharge for veterans who return to work after a month or more of military service. If a veteran’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be discharged except for cause for six (6) months following their return to work. Veterans returning from more than one-hundred and eighty (180) days of service are afforded the same protection from discharge for one year. See 38 U.S.C. § 4316(c)(1) and (2); 20 C.F.R. § 1002.247(a) and (b). To meet the burden—which is the employer’s—of showing “cause,” an employer must produce evidence demonstrating, not only that it was reasonable to discharge the employee for the conduct at issue, but that the employee had notice that the conduct would constitute cause for discharge. See 20 C.F.R. § 1002.248(a). READ MORE
Recently in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., No. SJC-11901, 2015 WL 10937776 (Mass. May 31, 2016), the Supreme Judicial Court of Massachusetts held, as a matter of first impression, that self-help discovery “may in certain circumstances constitute protected activity” under the state anti-retaliation statute, provided that, “the employee’s actions are reasonable in the totality of the circumstances.”
The Organisation for Economic Cooperation and Development (“OECD”), an international organization whose goal is to promote policies that will improve the economic and social well-being of people across the world, recently published a report entitled “Committing to Effective Whistleblower Protection” (the “Report”). A booklet containing the highlights of the report is available here. In the Report, the OECD reviews whistleblower laws and practices within its 34 member countries, making it a useful resource for multinational companies doing business around the world.
On June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of certain job applicants in the initial stages of the employment application process. You can read more about the Act here. The New York City Commission on Human Rights (the “Commission”), the agency charged with enforcement of the Act, recently issued “Legal Enforcement Guidance” (the “Guidance”) regarding the Act. As summarized below, the Guidance provides clarity regarding various aspects of the Act, including definitions of key terms, per se violations and exemptions from the Act.
The use of big data in employment decisions—a practice often referred to as “people analytics”—has exploded in recent years. Lately, however, the concept is gaining more and more attention not only for its appeal of faster and more efficient hiring, but also for the significant risks it can pose. One key risk is the potential for a disparate impact claim, particularly on a class-wide basis. So while proponents of using software tools and algorithms to identify and select job candidates claim people analytics is more efficient and effective than traditional recruiting and selection procedures, employers should take care when choosing tools and vendors, and should proactively monitor their implementation to avoid big liability.
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.
On June 10, 2015, the New York City Council passed the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of applicants in the initial stages of the employment application process. With the passage of the Act, which is expected to be signed by Mayor Bill de Blasio, New York City joins a large group of other states and municipalities in passing so-called “ban the box” legislation, which refers to laws that prohibit or restrict employers from asking about or relying upon criminal convictions and arrests or requiring employees to disclose their criminal history through a check box on an employment application. The ban the box legislation stems from the use of criminal history as an employment screening tool and from concerns that criminal history is often not a reliable indicator of job performance, and moreover, may adversely affect minority groups.
On December 31, 2014, the Court of Appeal for the Second District of California held in an unpublished opinion that employers are not required to relieve employees of all duty during rest periods mandated by California state law. In so holding, the court in Augustus v. ABM Sec. Servs., Inc., No. B243788, 2014 WL 7463154 (Cal. Ct. App. Dec. 31, 2014), reversed the trial court’s award of approximately $90 million dollars in statutory damages, interest, penalties, and attorneys’ fees to the employees.
On October 8, 2014, the U.S. Supreme Court heard oral argument in Integrity Staffing Solutions, Inc. v. Busk. In Busk, plaintiffs allege that, under the FLSA, their employer should have compensated them and other warehouse employees for time spent passing through the employer’s security clearance at the end of their shifts, including their time spent waiting in line to be searched. Busk is an important case to watch because the Court may provide employers with wide-ranging guidance on what pre-work or post-work tasks are compensable.