On Friday, January 10, 2020, Chief United States District Judge Kimberly Mueller of the Eastern District of California heard oral argument on plaintiffs’ motion for preliminary injunction. As a result of clarifications made at the oral argument, the temporary restraining order (TRO) has been modified from its broad applicability to only enjoin defendants from enforcing AB 51 to the extent it applies to arbitration agreements covered by the FAA. The revised TRO will remain in effect until January 31, 2020, at which point we might have a ruling on the preliminary injunction. Judge Mueller concluded the oral argument by providing both parties the opportunity to submit supplemental briefing on two issues: (1) jurisdiction/standing; and (2) severability. As to the latter issue, Judge Mueller indicated she would accept specific proposals related to how the arbitration-related sections of the statute might be severed if she decided to grant the injunction on FAA preemption grounds. READ MORE
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers of all types and sizes from discriminating against applicants and employees based on uniformed service, which includes service in the Army, Navy, Marine Corps, Air Force, Coast Guard, the Guard and Reserve components of military services, and the Commissioned Corps of the Public Health Service. The law grants strong reemployment rights and protections for service members returning to their civilian jobs. READ MORE
In Germany, fixed-term employment is strictly regulated: As a rule, fixed-term requires objective grounds that justify the limited term. There are exceptions for new hires: If the same employee has not been employed (on a fixed-term or open-ended) by the company before, as a rule, a fixed-term not exceeding two years is allowed including a maximum of three renewals within that period. READ MORE
On July 16, 2019, three prominent whistleblower law regulators spoke at PLI’s Corporate Whistleblowing in 2019, which was co-chaired by Orrick partners Mike Delikat and Renee Phillips. With the standard disclaimer that their comments and opinions were their own and not the official comments of their respective agencies, each spoke about their agencies’ whistleblower program’s current progress, challenges, and priorities. READ MORE
On July 3, 2019, California governor Gavin Newsom signed the Crown Act into law, making California the first state to ban discrimination based on Natural Hair.
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
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
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
This article was co-authored by Omar Madhany, Associate at Borden Ladner Gervais LLP , 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.
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