Ninth Circuit “Cleans House” in Vazquez v. Jan-Pro Decision by Holding ABC Test Applies Retroactively and Opining on Its Effect on Franchisors

On May 2, 2019, the Ninth Circuit in Vazquez v. Jan-Pro Franchising Int’l, Inc. held that the California Supreme Court’s 2018 decision in Dynamex Operations West v. Superior Court applied retroactively. Dynamex adopted the “ABC” test for independent contractor classification for claims arising under California’s Wage Orders. For those claims, an employer must show that all three prongs of the ABC test are met to justify independent contractor status. For information on Dynamex’s adoption of the ABC test, read our prior coverage here. READ MORE

SCOTUS to Finally Decide if Sexual Orientation and Gender Identity Are Protected by Title VII

On April 22, 2019, the U.S. Supreme Court granted certiorari in a trio of employment discrimination cases for which the Court’s forthcoming rulings—expected to be published by June 2020—could ultimately settle whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity. The three cases that the high court agreed to hear are Bostock v. Clayton Cnty. Bd. of Comm’rs, No. 17-1618 (filed May 25, 2018), Altitude Express, Inc. v. Zarda, No. 17-1623 (filed May 29, 2018), and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, et al., No. 18-107 (filed July 20, 2018). The first two cases involve sexual orientation specifically, while the third case pertains to gender identity. READ MORE

Teachable Moment on Equal Pay Act and Title VII as Fourth Circuit Rejects Claim that Professors Perform “Equal” or “Similar” Work

The Fourth Circuit recently issued a decision discussing whether a university professor established pay-related claims under the Equal Pay Act and Title VII.  This case has important implications for professional occupations where complainants seek to compare themselves to their colleagues for purposes of alleging pay discrimination.

Zoe Spencer, a sociology professor at Virginia State University (“VSU”), sued her employer for allegedly paying her less than two male professors because she is a woman.  The district court granted summary judgment, and plaintiff appealed to the Fourth Circuit.  The Fourth Circuit affirmed the district court’s decision because (1) plaintiff failed to present evidence that creates a genuine issue of material fact that the two male professors are appropriate comparators; and (2) in any event, unrebutted evidence shows that the VSU based the two male professors’ higher pay on their prior service as VSU administrators, not their sex.

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District Court Orders Employers to Submit Component 2 Data by September 30, 2019

The EEOC has been ordered to collect employers’ EEO-1 Component 2 pay data by September 30, 2019.  The D.C. District Court issued the order after finding back in March 2019 that Office of Management and Budget (OMB’s) decision to stay the collection of Component 2 pay data lacked the reasoned explanation required by the Administrative Procedure Act.  See our prior blog posts here, here, and here about National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C.).  Since then the court has been critical of the EEOC’s compliance with its order, and held a status conference and a hearing in March and April. READ MORE

Must-See Viewing: NYC Sexual Harassment Video Training Released

The New York City Commission on Human Rights (“NYCCHR”) released its long anticipated model anti-sexual harassment training on April 1, 2019.  The City’s model training satisfies all of the training requirements under both New York State and City laws, although the training is geared to educate viewers as to the broader sexual harassment protections afforded to workers by the New York City laws.  READ MORE

Tip-ping the Scales: New Challenge to the DOL’s Revised Tip Credit Rule

As was reported late last year, the Department of Labor (“DOL”) in 2018 published an Opinion Letter (FLSA2018-27), effectively rescinding the agency’s 80/20 tip credit rule. In general, the tip credit rule permits employers in tip-producing industries, such as the restaurant industry, to compensate employees at a minimum rate of $2.13 per hour, and to take a credit against the tips an employee receives. An employer is additionally responsible for the remainder of an employee’s wages, if any, between what the employee earned in wages and tips combined, and the federal minimum wage. READ MORE

Hut-Hut-Hike: The Second Circuit Tackles Hostile Work Environment Claims Under the ADA

In a case of first impression, the Second Circuit has held that hostile work environment claims are cognizable under the American with Disabilities Act (ADA).  In Fox v. Costco Wholesale Corporation, No.17‐0936‐CV (2d Cir. Mar. 6, 2019), the Second Circuit joined the Fourth, Fifth, Eighth, and Tenth Circuits to recognize this cause of action under the ADA.  The court also provided useful guidance on when teasing may or may not suffice to establish a hostile work environment. READ MORE

Confidentiality Optional: New Jersey Nixes NDAs and Arbitration for Discrimination and Harassment Claims

In the wake of the #MeToo movement, lawmakers nationwide proposed legislation with expressed goals of preventing future sexual harassment scandals. Many proposed bills expired in committee and only a select few became law. New Jersey’s Senate initially proposed S-121 in January 2018. Governor Phil Murphy just signed it into law on March 18, 2019 (full text here). READ MORE

IRS Reports Record $312 Million In Whistleblower Bounties

In February, the Internal Revenue Service (IRS) released its FY 2018 Annual Report and announced a record-breaking year for the agency’s whistleblower program.  Overall, whistleblowers provided information that contributed to the agency’s recovery of over $1.44 billion during the course of the year.  As a result, the IRS awarded $312 million in bounty awards to whistleblowers in FY2018, an almost ten-fold increase from the $33.9 million in awards it made in FY2017.  Of the 217 total awards the agency made to whistleblowers in FY 2018, 31 were mandatory awards under Internal Revenue Code section 7623(b) and 186 were discretionary awards under section 7623(a) (which applies to smaller cases). The average award percentage from the total amount collected was 21.7% – up from 16.6% in FY 2016 and 17.8% in FY 2017. READ MORE

Can You Hear The Whistle Blowing Outside: CFTC Makes First Ever Whistleblower Award To Company Outsider

The U.S. Commodity Futures Trading Commission (CFTC) announced earlier this month that it had awarded more than $2 million to an individual who provided “critical information through independent analysis of market data” contributing both to a successful CFTC action and related action brought by another federal regulator. The payout is the first of its kind for the CFTC because it is the first time the agency has awarded a whistleblower who was a company outsider. READ MORE