Employment Law and Litigation

Posts by: Editorial Board

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

Editorial BoardPosted on November 3, 2017

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

Editorial BoardPosted on October 27, 2017

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

Editorial BoardPosted on June 29, 2017

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.

Another One Bites the Dust: DOL Rescinds Obama’s Persuader Regulations

Editorial BoardPosted on June 16, 2017

Earlier this month, the United States Department of Labor (“DOL”) announced its intent to rescind the Obama-era regulations regarding persuader activity and reporting requirements pursuant to Section 203(c) of the Labor-Management Reporting and Disclosure Act (“LMRDA”). Under the Obama administration, persuader activity was considered activity by anyone engaged to help management discourage employees from forming or joining a labor union, including lawyers hired to advise management on how to discourage union organizing activity. The official rescission of the Rule was published in the Federal Register on June 12, 2017.

Trump’s Religious Freedom EO May Set Stage for Future Expansion of Religious Exercise in the Workplace

Editorial BoardPosted on May 17, 2017

On May 4, 2017, the President signed the Executive Order Promoting Free Speech and Liberty (the “EO”). The EO’s stated policy is to “vigorously enforce Federal law’s robust protections for religious freedom.” An early version of the Executive Order contained provisions that directed the Department of Labor to begin rulemaking which could have expanded the religions exemptions to federal civil rights laws for federal contractors. While this and other expansive provisions were not included in the current EO, further accommodations of religious exercise in the workplace are not off the table. READ MORE →

Chapter Closes on Obama Fair Pay and Safe Workplaces Initiative

Editorial BoardPosted on March 30, 2017

On Tuesday, the President officially killed the Obama-era Fair Pay and Safe Workplaces (“FPSW”) Initiative, which came to be known as the “Blacklisting regs”. The move was widely expected as Executive Order 13673, the Federal Acquisition Council’s Regulations and the Department of Labor’s Guidance were widely panned by federal contractors. However, the Trump Administration’s path to dump this initiative represents how Washington makes it difficult to do even the simplest things quickly. READ MORE →

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

Editorial BoardPosted on March 9, 2017

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 →

President Trump Says “Not So Fast” — The Future of Overtime, Fiduciary, and Pay Reporting Rules Remains Uncertain Under the Trump Administration

Editorial BoardPosted on February 1, 2017

On January 20, 2017, shortly after Donald Trump became the 45th President of the United States, his Chief of Staff, Reince Priebus, issued an Executive Memorandum mandating a 60-day freeze on published federal regulations that have yet to take effect to allow Trump’s appointees time to review the regulations. Although such action is fairly standard during a change of administration, the impact could be significant if certain regulations set to take effect in 2017 are delayed or ultimately replaced. Regulations potentially affected by the 60-day freeze include the Department of Labor’s (“DOL”) overtime and fiduciary rules, and the Equal Employment Opportunity Commission’s (“EEOC”) EEO-1 pay reporting requirements. READ MORE →

DOL’s Final Rule on Sick Leave Takes Effect: Contractors Have Until Year’s End to Comply

Editorial BoardPosted on October 10, 2016

On September 29, 2016, the DOL released a final rule requiring federal contractors to provide seven days of paid sick leave annually. The rule implements a 2015 executive order from President Obama that we covered in greater detail here. More than 35,000 individuals and organizations submitted comments on the DOL’s proposed rule.

Pay Raises Across the Nation? Not So Fast Say Several States and Business Groups: 21 States and 55 Business Groups Challenge New Federal Overtime Rule

Editorial BoardPosted on September 27, 2016

On Tuesday, September 20, 2016, twenty-one states filed a complaint in federal court in Texas challenging the new overtime rule finalized by the Department of Labor (“DOL”) in May of this year. The States seek to prevent implementation of the new rule, which is scheduled to become effective on December 1, 2016. That same day, fifty-five business groups, including several chambers of commerce, filed a similar lawsuit in Texas federal court to block the rule.