On June 15, and just in time for LGBTQ+ Pride month, the U.S. Supreme Court issued a landmark decision holding that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity. The decision is among the most Court’s most significant federal non-discrimination rulings in the last several decades, and immediately resolves a circuit split regarding the scope of Title VII’s prohibition on sex-based discrimination. The decision covers three consolidated opinions – Bostock v. Clayton Cnty. Bd. of Comm’rs, Altitude Express, Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. READ MORE
Alex Mitchell is a member of Orrick's Employment Law Group.
Alex graduated with honors from the University of Pittsburgh School of Law, where he was awarded the Thomas M. Cooley Legal Writing Award in two consecutive years. He graduated concurrently from Carnegie Mellon's Heinz School, where he was awarded a degree with distinction in public policy and management. While in law school, Alex was an honors legal intern at the Department of Defense, where he participated in a wide variety of legal matters ranging from employment litigation to federal acquisitions.
Alex’s practice focuses on litigation and counseling across a wide range of employment issues claims, including discrimination, harassment, retaliation, wrongful discharge, and wage and hour issues. Alex’s practice also includes investigating internal employee relations matters, preparing employee handbooks and policies, and drafting employment contracts and other employee agreements.
Posts by: Alex Mitchell
On June 11, the U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its compendium FAQs on COVID-19 and the workplace. The latest revisions provide additional guidance on non-discrimination obligations under various federal non-discrimination laws as employees return to work. We previously blogged about the agency’s FAQ guidance here. READ MORE
I. Premium Pay and COVID-19
Although many Americans have suffered furloughs or job losses while those more fortunate are able to work, albeit remotely, workers deemed “essential” under state executive orders and federal guidelines continue to perform their job functions in public-facing circumstances outside of the home. State lawmakers across the country have introduced measures to provide premium or hazard pay to compensate essential workers for the heightened risk of exposure to COVID-19. In addition, the House of Representatives included a premium pay component in its latest COVID-19 response measure. These measures impose the benefits and obligations of additional pay upon different groups of workers and employers, respectively, despite the same overlapping legislative intent. Moreover, the measures raise several important legal questions regarding employment classification and state pre-emption laws. As many states begin to reopen their economies while both the public and private sectors face significant budget constraints, a question remains: will these premium pay measures be dismissed by lawmakers in light of the economic downturn or set the stage for further discussions on either the state or federal level in providing additional pay to those who continue to work during a declared public emergency. READ MORE
As the battle against COVID-19 intensifies, healthcare workers have become vocal about their perceptions of deficiencies surrounding patient care and safety within their workplaces and have expressed their views publicly on social media and other platforms. Videos, photographs, and testimonials underscore employees’ concerns about patient care and the availability of protective gear and other supplies. Healthcare employers have, at the same time, struggled to regulate the flow of information and misinformation about COVID-19 in their facilities. In some cases, healthcare employers have prohibited employees from speaking to the media without express authorization under new or existing policies. READ MORE
Not to be outdone by the New York State legislature’s flurry of eleventh-hour lawmaking (which we previously reported on here and here), the New York City Council recently passed an employment bill pending since April of 2018. The new law, Int. No. 0799-2018, amends and broadens workplace anti-retaliation protections under § 8-107(7)(v) of the New York City Human Rights Law (“NYCHRL”) by including that it is illegal to retaliate against an employee or applicant who requests a reasonable accommodation under the law. READ MORE
Major changes are in store for New York employers under a new bill passed in the waning hours of the 2019 legislative session. As part of an ongoing, multi-year effort to address sexual harassment and other discrimination and harassment issues, the New York legislature on June 19, 2019 passed Assembly Bill 8421 (“AB 8421”), a compendium bill that introduces new and refined employee protections against harassment, retaliation, and discrimination in the workplace. AB 8421 amends the New York State Human Rights Law (“NYSHRL”) to usher in new affirmative protections and procedural mandates that will significantly affect employer liability under state law. Building on protections previously enacted under the 2018 state budget, AB 8421 will expand prohibitions on nondisclosure agreements and arbitration agreements to categories of discrimination and harassment beyond sexual harassment. Key elements of AB 8421 are described below. READ MORE
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
On November 8, 2018, the Department of Labor published an Opinion Letter (FLSA2018-27) reissuing its January 16, 2009 guidance (Opinion Letter FLSA2009-23) and reversing the agency’s Obama-era position on the 20% tip credit rule. The letter marks another significant shift in Department of Labor policy, and among the first major changes in federal tip credit policy over the last decade. READ MORE
On August 31, 2017, Judge Amos Mazzant of the United States District Court for the Eastern District of Texas, issued an order invalidating the Obama-era overtime rules. Finding that the Department of Labor rule exceeded its statutory authority under the Fair Labor Standards Act, the district court appeared to end the saga that had employers furiously determining whether they were going to adjust the pay of a wide swath of their workforces last Fall. However, the decision does not close the books on whether changes to the FLSA white collar exemptions are on the horizon. READ MORE
Several recent cases are poised to set a major tonal shift in the realm of LGBT employee rights following the Supreme Court’s 2015 landmark decision in Obergefell v. Hodges. As part of its ongoing coverage of LGBT employment issues, Orrick offers its insights and predictions as courts continue to contemplate where sexual identity fits within this changing landscape of protected statuses. READ MORE