Labor Courts

NLRB Finds Restaurant Wrongly Terminated Employees for “Profane” Emails

The NLRB continues to find fault with employers who discipline or terminate employees for sending emails discussing the terms and conditions of employment.

When four restaurant workers at Mexican Radio responded to a group email from former employee Annette Polanco complaining about the wages, work schedules, tip policy, and the treatment of workers, the now-closed Manhattan location of the chain responded by preparing reprimands and then terminating their employment. READ MORE

Flagged Down: Second Circuit Finds NYC “Black Car” Drivers Are Independent Contractors

The Second Circuit has affirmed the dismissal of a class action of New York City “black car” drivers who alleged they were misclassified as independent contractors by their dispatchers. In reaching its ruling, the Court found that multiple factors of the economic realities test weighed against employee status for the drivers.

Black car drivers provide rides to high-end clientele, such as business executives, celebrities, and dignitaries. In 2012, a class of drivers sued Corporate Transportation Group Ltd. and a number of its affiliates (collectively, the “dispatchers”) alleging they were misclassified as independent contractors in violation of the FLSA and New York Labor Law.  After originally granting conditional class certification, the U.S. District Court for the Southern District of New York granted the dispatchers’ motion for summary judgment, concluding the drivers were properly classified as independent contractors under both statutes. READ MORE

Upon Further Review: Supreme Court Weighs Deference Due District Courts in EEOC Subpoena Proceedings

In a recent oral argument before the U.S. Supreme Court, the justices considered a narrow procedural issue that could have broader implications for the subpoena power of the U.S. Equal Employment Opportunity Commission (“EEOC”).

At issue in McLane Company, Inc. v. EEOC is the standard of review applicable to district court decisions in proceedings brought to compel compliance with EEOC subpoenas issued in administrative investigations.  While all the other circuits to have considered the issue have applied an abuse-of-discretion standard, the Ninth Circuit held that such decisions are subject to de novo review. READ MORE

ECJ: No Discrimination Claims for Mock Applicants in Europe

Just in time for the 10th anniversary of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) the European Court of Justice (ECJ) has clarified that European anti-discrimination law does not protect mock applicants, i.e. applicants who are not interested in being hired, but solely apply in order to bring claims on the grounds of discrimination. The judgment will make it easier for companies in Europe to reject such discrimination claims in the future.

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California Bill Seeks to Enable Independent Contractors in the “Gig Economy” to Organize, Bargain, and Strike

In what could prove a harbinger of worker classification developments to come, Assembly Member Lorena Gonzalez (D – San Diego) has proposed AB 1727, “The California 1099 Self-Organizing Act.” The bill, which is at the earliest stages of the legislative process, would provide an avenue for certain workers classified as independent contractors to engage in “group activities” including organizing, bargaining, and striking. At bottom, the legislation would give certain independent contractors the ability to collectively confront those with whom they contract.

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Please Pass the Settlement: Second Circuit Widens Split Over Stipulated FLSA Dismissals

A recently filed petition for certiorari asks the U.S. Supreme Court to clarify the procedural requirements for ending private causes of action under the Fair Labor Standards Act (“FLSA”).  Specifically, petitioner Dorian Cheeks is asking the Supreme Court to review a decision from the U.S. Court of Appeals for the Second Circuit holding that Federal Rule of Civil Procedure 41 (“FRCP 41”) prohibits the dismissal of FLSA claims through private, stipulated settlement agreements absent approval from either a federal district court or the U.S. Department of Labor (“DOL”).

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California Supreme Court May Limit The Scope Of PAGA Plaintiffs’ Access to Statewide Discovery

The California Supreme Court is poised to clarify what limits may apply to burdensome discovery demands in litigation under California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”), which allows employees to bring non-class representative actions against employers on behalf of themselves and other “aggrieved employees” for alleged violations of the Labor Code.

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The Times They Are A-Changin: National Labor Relations Board Revises The Joint-Employer Test After More Than Thirty Years

After more than 30 years, the National Labor Relations Board (the “Board”) has concluded that it was time to change the standard for determining when companies are to be considered joint employers under the National Labor Relations Act.  On August 27, 2015, with its much-anticipated decision in Browning-Ferris Industries of California, Inc., the Board issued a new joint-employer standard that will examine whether an employer has the potential to exercise control over employees’ working conditions and reversed the previous requirement that a joint employer must exercise direct and immediate control over the employees in question.

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Second Circuit Speaks: No Private Settlements of FLSA Actions

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In Cheeks v. Freeport Pancake House, Inc., the Second Circuit held that without the approval of a district court or the U.S. Department of Labor, parties cannot secure a stipulation of dismissal with prejudice of an FLSA claim under Federal Rule of Civil Procedure 41(a)(1)(A)(ii).  In practice, this holding will prevent parties to an FLSA litigation – where there is a bona fide dispute as to liability – from reaching a privately negotiated settlement that includes a joint stipulation of dismissal of the case.

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