Employment Law

AB 5 and AB 71: CA Legislature Dukes It Out Over Dynamex and Borello

The battle between Dynamex and Borello continues. Two competing bills – Assembly Bill 5 (“AB 5”) and Assembly Bill 71 (“AB 71”) – each seek to codify the respective worker classification tests. On May 29, 2019, the California State Assembly overwhelmingly passed AB 5, a bill seeking to codify Dynamex Operations West, Inc. v. Superior Court of Los Angeles, which adopted the three-factor “ABC” test to determine a worker’s classification for wage order claims. Now the bill is headed to the state Senate. Meanwhile, AB 71, a bill seeking to codify S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations, has thus far not enjoyed the same success. READ MORE

SCOTUS to Finally Decide if Sexual Orientation and Gender Identity Are Protected by Title VII

On April 22, 2019, the U.S. Supreme Court granted certiorari in a trio of employment discrimination cases for which the Court’s forthcoming rulings—expected to be published by June 2020—could ultimately settle whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity. The three cases that the high court agreed to hear are Bostock v. Clayton Cnty. Bd. of Comm’rs, No. 17-1618 (filed May 25, 2018), Altitude Express, Inc. v. Zarda, No. 17-1623 (filed May 29, 2018), and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, et al., No. 18-107 (filed July 20, 2018). The first two cases involve sexual orientation specifically, while the third case pertains to gender identity. READ MORE

Hut-Hut-Hike: The Second Circuit Tackles Hostile Work Environment Claims Under the ADA

In a case of first impression, the Second Circuit has held that hostile work environment claims are cognizable under the American with Disabilities Act (ADA).  In Fox v. Costco Wholesale Corporation, No.17‐0936‐CV (2d Cir. Mar. 6, 2019), the Second Circuit joined the Fourth, Fifth, Eighth, and Tenth Circuits to recognize this cause of action under the ADA.  The court also provided useful guidance on when teasing may or may not suffice to establish a hostile work environment. READ MORE

The Whistle Blows North of the Border: Canadian Securities Regulator Makes First-Ever Whistleblower Awards

This article was co-authored by Omar Madhany, Associate at Borden Ladner Gervais LLP [1], and Mike Delikat, who co-heads the Whistleblowing Taskforce at Orrick.

On February 27, 2019, the Ontario Securities Commission (OSC)—Canada’s largest securities regulator—announced that it had awarded $7.5 million to three whistleblowers who provided tips that led to enforcement actions. (see OSC news release here). The awards are the first ever made under Ontario’s whistleblower bounty program, which was patterned closely after the bounty provisions of Dodd-Frank.  While these awards are small by comparison to recent SEC bounty awards of $54 million to two whistleblowers in September 2018 and a separate composite mega-award of $83 million to three whistleblowers in a single enforcement action on March 19, 2018, nonetheless these Canadian awards have garnered significant attention and press coverage in Canada.

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Closing the Gender Pay Gap in France: Get Ready

Equality between men and women has been declared in France a “great national cause” of Emmanuel Macron’s Presidency in the wake of the #MeToo movement.

In March 2018, the French government unveiled an action plan for gender equality in the workplace consisting of ten measures aiming at reducing the gender pay gap and five measures to fight sexual and gender based violence. READ MORE

2019 UK Gender Pay Gap Reporting – What to Expect

On 4 April 2019, employers with 250 or more employees will, once again, have to publish and report specific figures about their gender pay gap. And, following a year packed full of political statements and unprecedented movement towards gender equality, there will undoubtedly be pressure on employers to demonstrate progress in closing the gap.  READ MORE

What We May See from the California Supreme Court in 2019

2018 saw some major developments in employment law, particularly in California. The California Supreme Court embraced the ABC test for independent contractors in Dynamex, and rejected the de minimis doctrine for Labor Code claims in Troester. While 2019 has already brought legislative changes through the #metoo laws effective January 1, attention should also be on cases before the California Supreme Court. These cases may present new challenges for all employers, but particularly for media companies and employers doing business across state lines. The Court’s decisions in these cases have the potential to increase employers’ exposure to liability. We highlight some such cases here. READ MORE

“Yellow vest bonus:” how does it work?

Since mid-November 2018, France has been shaken by the “yellow vests” mass demonstrations. Originated on social media and grounded in its opposition to the TICPE (fuel tax) increase, the leaderless movement expresses more broadly, according to many analysts, a reaction to the dwindling purchase power of the middle class and a strong stance against the French establishment.

The political impact of the movement was quickly felt, as President Macron announced, in a televised address aired on 10 December 2018, a series reform aiming at meeting the yellow vests demands, including notably an increased minimum wage, tax and social exemptions for overtime hours as well as a tax and social contributions-free end of the year bonus.

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#MeToo One Year Later – Employers’ Responses to the Movement

On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement’s impact on sexual harassment claims in the workplace, Part 2 focused on the legislative reaction to the movement, and Part 3 below discusses how employers have responded to #MeToo.

Over the past year, the #MeToo movement has caused a seismic shift in our culture that continues to ripple through important aspects of our daily lives, especially the workplace. As we previously discussed, the #MeToo movement’s growing momentum has sparked rising trends in sexual harassment claims and lawsuits, as well as a significant increase in EEOC charges and enforcement efforts. In the past year, the EEOC revealed that it filed 41 lawsuits with sexual harassment allegations, which is a 50 percent increase from 2017. In addition, litigation and administrative enforcement of sexual harassment issues yielded nearly $70 million to the EEOC in 2018, up from $47.5 million the prior year. But newly filed lawsuits or administrative charges only reveal a part of the impact – claims of sexual harassment may have a devastating effect on those accused of wrongdoing and their employers, even if they lie far beyond any applicable statute of limitations, as today’s claims often do. Employers of all shapes and sizes are acclimating their policies and practices for the #MeToo era, as none can avoid the categorical shift in workplace culture that is slowly becoming the “new normal.” READ MORE