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New York Cannot Prohibit the Arbitration of Sexual Harassment Claims

Last year, amid the growing #MeToo movement, New York enacted a law that prohibited the mandatory arbitration of sexual harassment claims. The law declared any such contract provision entered on or after July 11, 2018, to be “null and void.” N.Y.C.P.L.R. 7515 (“7515”). Even before it was passed, legislators were concerned about the law’s ability to withstand challenge that it was preempted by the Federal Arbitration Act (FAA), which provides for the judicial enforcement of arbitration agreements and awards (the FAA applies in both state courts and federal courts). The U.S. Supreme Court strongly supports the FAA and has repeatedly ruled that its pro-arbitration mandate must be broadly interpreted. Perhaps aware of 7515’s shaky foundation in light of the FAA, the statute states that it applies “except where inconsistent with federal law.” N.Y.C.P.L.R. 7515(a)(4)(b)(i). (Read More)

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Supreme Court Rules a Plaintiff’s Failure to File EEOC Charge Is Not Fatal to Title VII Lawsuit Unless Timely Raised by a Defendant

It’s a given that employers are prohibited from discriminating against employees on the basis of sex, race, color, national origin and religion – this according to Title VII of the Civil Rights Act of 1964, which generally applies to employers with 15 or more employees, including federal, state and local governments. It’s also been a given that a court lacked jurisdiction over a court action for discrimination under Title VII until and unless an employee first filed a charge of discrimination on the underlying claim with the U.S. Equal Employment Opportunity Commission (EEOC). Not anymore. By way of its recent ruling in Fort Bend County v. Davis, the U.S. Supreme Court has determined that this now-familiar administrative filing precondition is a “procedural obligation” and not a jurisdictional prerequisite to a lawsuit. (Read More)

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Attention Employers: Prepare for Reinstated EEO-1 Pay Data Reporting by Summer’s End

Does your company employ 100 people or more? If so, be forewarned – a federal court has lifted the Office of Management and Budget’s stay of the revised EEO-1 form that requires companies to submit a summary of 2018 wage information and hours worked for all employees by race, ethnicity and sex by job category to the Equal Employment Opportunity Commission (EEOC). (Read More)

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Federal Reserve Seeks to Bar Bankers for Misappropriation

A greater awareness of the need to guard against misappropriation of trade secrets and the need for effective remedies has become a rather hot topic of late. With the passage of the Federal Defend Trade Secrets Act, Congress federalized the fight against trade secret misappropriation with the effect that there will eventually be a consistent application of trade secret law across the United States. Regulatory bodies are also ramping up their efforts to stem misappropriation. For example, the DOJ has formed the Intellectual Property Task Force. (Read More)

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Another Class Action-Related Gift to Employers from the U.S. Supreme Court  

Nearly a year after its decision in Epic Systems Corp. v. Lewis, finding that class and collective action waivers contained in employer arbitration agreements are lawful and enforceable under the Federal Arbitration Act, the U.S. Supreme Court has spoken once more on the topic. This week, in Lamps Plus Inc. v. Varela, the high court ruled that arbitration agreements must specifically contemplate class arbitration for that process to be invoked. (Read More)

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Navigating the Complex Web of the FMLA

The Family Medical Leave Act (FMLA) is admittedly complex. Still, covered employers are required to strictly comply with its terms. To assist employers as they navigate the intricacies of the FMLA, the U.S. Department of Labor (the “DOL”) recently issued several opinions concerning some difficult and unresolved issues. (Read More)

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The DOL Tries Again to Refresh Overtime Salary Thresholds

Following the invalidation of its 2016 rules by a Texas district court, the U. S. Department of Labor released a new proposed rule again looking to raise the salary level required to be eligible for the “white collar” or “EAP” (Executive, Administrative, Professional) exemptions from overtime premium pay under federal law. (Read More)

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Your Company Needs a Social Media Policy

The use of social media in the corporate setting carries serious potential risk. The most extreme example of this, of late, is Tesla CEO Elon Musk, who was sued by the Securities and Exchange Commission after tweeting that he was considering taking Tesla private and that he had “funding secured” in order to do so. Market chaos and the SEC litigation ensued, and since then Musk has been forced to step down as chairman of the electric car company and pay a $20 million fine to settle with the SEC.

While not grabbing as many headlines as Musk, employees of all rank and profile are prone to commit social media blunders, and they too can pay the consequences. Take, for example, the Dunkin’ Donuts employees who posted a video they created showing one of them humiliating a homeless man at a Syracuse, New York location; the workers at a Little Caesars franchise in Riverdale, Georgia who uploaded onto Instagram a picture of a customer along with a tasteless message about her; or the Texas Children’s Hospital nurse in Houston who went on an anti-vaccine rant online relating to a young patient’s bout with measles. In all these cases, the employees were fired, but that certainly did not shield their employers from a slew of negative press. (Read More)

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Misclassification Class Actions Take a Back Seat

The corporate folks at Uber Technologies Inc. have cause to be uber-happy given the outcome of a recent appeal before the Ninth Circuit – a decision that sends a clear message to employers throughout the West.

The peer-to-peer ridesharing company had been facing a class action lawsuit filed on behalf of drivers claiming to be Uber employees, as opposed to independent contractors as classified when hired and as reflected in agreements they signed with the company. The stakes in the case were high and potentially quite costly for Uber: among other things, reclassification would potentially require reimbursement for gasoline and vehicle maintenance and trigger minimum wage and overtime laws. (Read More)

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Employee Accommodations: Now a Mandatory Topic of Conversation in NYC

The hurdles for employers in New York City continue to line up. The latest legal mandate: compliance with local accommodations law.

Beginning October 15, 2018, NYC employers with four or more employees will be required to engage in and document a good faith written or oral dialogue concerning (1) their employees’ accommodations needs, (2) potential accommodations that may address those needs (including proposed alternatives), and (3) any difficulties potential accommodations may pose for the employer. The types of accommodations contemplated under the so-called “cooperative dialogue law” are those relating to an employee’s religion; disability; pregnancy, childbirth or other related medical conditions; or the needs of a victim of domestic violence, sex offenses and stalking. (Read More)