Posts by: Editorial Board

The Challenges Ahead for GIG Economy Platforms in Europe Increase as the Labor Courts’ Scrutiny Intensifies

Further to the reclassification of the service agreement between an independent deliveryman and Deliveroo, ordered by a Spanish lower Court, French jurisdictions recently shifted position, considering that several independent workers should be deemed employees of the platform that they were working for. READ MORE

Let Them Eat Cake: Religious Accommodations, LGBTQ Rights and Other Workplace Implications of SCOTUS’ Masterpiece Cakeshop Decision

In a highly anticipated ruling, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, U.S. Supreme Court ruled 7-2 in favor of a cake shop owner who refused to make a wedding cake for a same-sex couple because of his religious beliefs.  The case highlights the potentially conflicting intersection of religious freedoms and anti-discrimination laws; i.e. the right to hold sincere religious beliefs and the right to be treated equally and without discrimination based on one’s sexual orientation. READ MORE

Oral Arguments Heard by the Supreme Court on Enforceability of Class Action Waivers in Arbitration Agreements

In July, we reported that the Supreme Court scheduled oral arguments to settle the circuit split of whether mandatory class action waivers violate section 7 of the National Labor Relations Act (“NLRA”).

Last month, both sides argued before the Court: the pro-employer representatives argued that arbitration agreements containing class waivers must be enforced under the FAA (representing the Second, Fifth and Eighth Circuits) while the pro-employee representatives argued that class waiver provisions contained in arbitration agreements are illegal under the NLRA and thus, not subject to the FAA (representing the Sixth, Seventh and Ninth Circuits). READ MORE

COFFEE BREAK: Third Circuit Reminds Employers That Short Breaks May Be Compensable Under FLSA

Most employers in California are all-too familiar with the Golden State’s unique meal and rest break requirements.  But outside of states like California, Oregon, and Washington, which have clear requirements for meal and rest breaks, employers may forget that the Fair Labor Standards Act has its own rest break obligations. READ MORE

“Pedigree Information” Sought by EEOC In Pre-Litigation Investigation May Be Relevant

Gender inequality on career path business concept, Business lady runs against businessman on career path, but fails because on her side of path there are a lot of obstacles.. “Pedigree Information” Sought by EEOC In Pre-Litigation Investigation May Be Relevant

Following a vacate and remand order by the United States Supreme Court for employing the de novo standard of review rather than the abuse of discretion standard, the Ninth Circuit revisited the standard for relevance in the EEOC subpoena context.  EEOC v. McLane Co., No. 13-15126 (9th Cir. May 24, 2017).

In McLane, the EEOC was investigating a charge of gender discrimination which was based on the employer’s use of a physical capacity strength test. As part of its pre-litigation investigation into that charge, of gender discrimination filed by an ex-McLane Company employee, the EEOC issued a subpoena for “pedigree information” (i.e., name, Social Security number, last known address, and telephone number) for employees or prospective employees who took the physical capability strength test.

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It’s Smooth Sailing for a Shipping Company After Ninth Circuit Arbitration Victory

Last month, the Ninth Circuit issued a notable opinion addressing the enforceability of arbitration agreements in Poublon v. C.H. Robinson Co., 846 F.3d 1251 (9th Cir. 2017), mandate issued (Feb. 24, 2017).  In Poublon, the employee filed a class action even though she signed a dispute resolution agreement that prohibited representative actions and required her to mediate and arbitrate all other claims.  The court evaluated the agreement to determine if it was unconscionable under California law, which looks at both procedural and substantive unconscionability on a sliding scale.  Although the court held that a few provisions were substantively unconscionable, the court severed and reformed the offending provisions and largely upheld the dispute resolution agreement. READ MORE

Equal Pay Day 2016:  Where Are We 20 Years Later?

Today marks the twentieth anniversary of “Equal Pay Day,” which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year.  In more than 50 years since enactment of the federal Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), women have made significant progress in the workplace and now make up roughly half of the American workforce.  However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade.  That said, it is still not clear that employer bias is to blame for the gap that remains.  Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work.  Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.

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EEOC Ratchets Up Focus On Retaliation: EEOC Publishes First New Enforcement Guidance on Retaliation In Nearly Two Decades

The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency’s last-issued guidance on the topic from 1998.  The updated guidance addresses several significant rulings by the Supreme Court and lower courts from the past two decades.  The guidance was also informed by public input on retaliation and best practices that the Commission gathered from its June 17, 2015 meeting on “Retaliation in the Workplace:  Causes, Remedies, and Strategies for Prevention.”  The 30-day input period on the guidance ends on February 24, 2016.

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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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