Joshua F. Naylor

Emp Law Career Associate

New York


Read full biography at www.orrick.com
Joshua Naylor is a career associate and a member of the employment law group. Joshua represents clients in federal and state courts and before administrative agencies (e.g., EEOC, NYSDHR) in various employment litigation proceedings.

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.

Joshua also counsels clients on the hiring, discipline, and termination of employees, discrimination and harassment, leaves of absence, employee handbooks and policies, trade secrets, non-competition/non-solicitation agreements, and other issues arising under federal and state employment laws and regulations.

Prior to joining Orrick, he was an associate at a large labor and employment law boutique, served as in-house counsel for a U.S. Intelligence Community contractor overseas, and worked as an attorney at Goldman, Sachs & Co.

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Posts by: Joshua F. Naylor

Some Control Is Just Fine: Ninth Circuit Upholds Independent Contractor Status in Jones v. Royal Admin. Servs.

Just the other week, in Jones v. Royal Admin. Servs., the Ninth Circuit reaffirmed the federal common law standard for distinguishing agents from independent contractors and upheld the independent contractor status of telemarketers providing direct sales services for a company, Royal Administration Services, Inc. (“Royal”).

At issue were telemarketers employed by All American Auto Protection, Inc. (“AAAP”), one of about twenty marketing vendors used by Royal to sell vehicle service contracts.  Several recipients of these telemarketing calls filed suit, first against AAAP and then against Royal, alleging violations of the Telephone Consumer Protection Act (“TCPA”).  The telemarketing call recipients alleged that Royal was vicariously liable because the AAAP telemarketers were Royal’s agents.  Royal filed for summary judgment, asserting that the AAAP telemarketers were not its agents, but rather independent contractors.  The district court granted summary judgment for Royal. 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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Third Circuit Court of Appeals Rejects Broadening USERRA’S Evidentiary Burden For Discrimination Claims

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against members of the U.S. military and imposes various obligations on employers with respect to service members returning to their civilian workplace. 

 USERRA differs from other employment laws (e.g., Title VII, ADEA) in multiple respects.  For example, 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 may be timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.  Also, 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).  READ MORE

The “New York Promise Agenda” Promises to Increase Employee Protections

On January 9, 2017, New York State Governor Andrew M. Cuomo proposed a package of reforms to promote his vision of social justice within the state. The wide ranging set of proposals included two Executive Orders focused on eliminating the gender and race wage gap, which is one of the core stated goals of the New York Promise Agenda. READ MORE

Returning Veterans to Work: Reemployment Obligations for Employers under USERRA Vary Based on Length of Service

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against members of the U.S. military and imposes various obligations on employers with respect to service members returning to their civilian workplace.

USERRA differs from other employment laws (e.g., Title VII) in many respects. READ MORE

Cat’s Paw Making New Tracks: Second Circuit Extends Cat’s Paw Principle to Retaliation Claims and to Low-Level Employees

The “cat’s paw” doctrine, a concept first coined by Seventh Circuit Judge Richard Posner in 1990 and adopted by the Supreme Court in 2011, applies when an employee is subjected to an adverse employment action by a decision maker who does not have any discriminatory animus but who bases his or her decision upon information from another who has such an improper motive.  In Vasquez v. Empress Ambulance Service, Inc., the Second Circuit recently held that the “cat’s paw” theory may be used to support recovery for Title VII retaliation, in addition to discrimination, claims and then extended the doctrine to permit liability if the individual with the discriminatory or retaliatory motive is a low-level employee, not just a supervisor.

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Veterans Returning to Work After Military Service May Not Be Discharged Except “For Cause”

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

Despite Veteran-Friendly Construction, Liability Under USERRA’s Anti-Discrimination Provisions Still Requires Adverse Employment Action

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to work after a period of service in the U.S. military.  With a large number of service members currently deployed and increased intervention against ISIS potentially enlarging these numbers, employers’ treatment of employees who are members of the military continues to remain an important issue.

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It’s All Relative: A California Court Says Employers Must Accommodate Employees “Associated” With a Person With a Disability

In an issue of first impression, the California Court of Appeals held that employers have a duty under California’s Fair Employment and Housing Act (FEHA) to provide reasonable accommodations to an applicant or employee who is associated with a disabled person, even if the employee is not disabled.  Castro-Ramirez v. Dependable Highway Express, Inc. No. B261165, 2016 Cal. App. LEXIS 255 (Cal. Ct. App. April 4, 2016).  This holding confirms that FEHA provides broader protections for employees associated with a disabled person than the federal Americans with Disabilities Act (ADA), which does not contain the same requirement.

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Managers Beware: Individual Liability Confirmed Under USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to their civilian workplace after a period of service in the U.S. military.

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