Archives: Employment Litigation

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Brave New World: Evolving Protections For Transgender Employees

Aldous Huxley wrote in his novel Brave New World that “If one’s different, one’s bound to be lonely.” With increased visibility (Orange is the New Black’s Laverne Cox; Caitlyn Jenner), transgender people are both less different and less lonely. State anti-sex discrimination laws are expanding to include explicit protections for transgender employees. Currently, nineteen states … Continue Reading

Innovations In Settling Wage Hour Class/Collective Actions

Settling Rule 23 opt-out class actions is straightforward: the agreed-upon settlement is presented to the court for preliminary approval of a Rule 23(e) settlement class and — if the settlement is not approved — the parties return to their pre-settlement status: i.e., there is no class. But, following the conventional wisdom on FLSA opt-in rules … Continue Reading

Accommodating Religion: Ignorance Is Not Bliss

Title VII imposes an obligation to accommodate religion, including “all aspects of religious observance and practice, as well as belief.”  42 U.S.C. § 2000e, subd. (j).  This obligation has drawn renewed attention following the U.S. Supreme Court’s decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (June 1, 2015). … Continue Reading

Tattoo-ism: Where Body Art Meets Employment Discrimination

Tattoos and body piercings have become increasingly prevalent in the U.S. — over 20% of adults are now tattooed. This number only will be increasing because 38% of millennials (born from 1981-1992) have tattoos, approximately half of whom have two or more, while 23% of millennials have body piercings. More of a concern for employers, … Continue Reading

Allergic At Work Is Not Allergic To Work

Food allergies are widespread. Anyone who has a child, works at or with a school, or reads extensively knows that the increasing prevalence of food allergies among children is one of today’s biggest medical mysteries, not to mention a huge problem. The number of children with nut allergies has more than quadrupled since 1997, which … Continue Reading

What Do You Do When The Ugly Allegations In A Lawsuit Against Your Company Go Viral?

Take your cue from two leading ladies of television – Olivia Pope (Scandal) and Liz Garvey (Babylon).  In a world of instantaneous communication and open access to information, Liv and Liz are masters of crisis management. The New York Times recently outlined how electronic court filings (especially in harassment or whistleblower cases) go viral and … Continue Reading

Does YOUR Website Have to be Accessible Under the Americans with Disabilities Act?

Is the internet a place of public accommodation: a virtual town hall or a virtual shopping mall or a virtual movie theater? Courts still struggle with that. Physicalist courts say that the ADA requires a physical location. Ouelette v. Viacom, No. cv 10-133-M-DWM-JCL, 2011 WL 1882780 (D. Mont. March 31, 2011) (no ADA claim re … Continue Reading

Alter Egos: Where Fiction Becomes Labor Law And Vice Versa

Bruce Wayne. Clark Kent. Sir Percy Blakeney. In addition to being dashing literary figures, each of these men share a common trait – each has an alter ego. Donning a cape, the stoic Bruce Wayne becomes the intrepid Batman. The nerdy, spectacled Clark Kent transforms into the swashbuckling Superman. The foppish, self-obsessed Sir Percy Blakeney … Continue Reading

NLRB Toasts Chicago Bakery On English-Spanish Translation

Mistranslation is both innocent and ubiquitous. Mark Twain had fun with the mistranslations of one of his short stories into French. Indeed, literary superstars frequently acknowledge that translations are invariably imperfect. Jorge Luis Borges’ line — “the original is unfaithful to the translation” — exposes that variance with irony. Both the innocence and the inevitability … Continue Reading

“No Hire” Agreements: Unlawful Collusion or Necessary Self-Protection?

Recent headlines from the Silicon Valley suggest that “no-hire” agreements are illegal, immoral, and unsustainable. But, those headlines address blanket restrictions negotiated between competitors. Targeted restrictions between supplier company and customer company are entirely different. The Department of Justice’s Competitive Impact Statement (“DOJ CIS”) in those Silicon Valley cases acknowledges that distinction: “An agreement that … Continue Reading

The Goldilocks Paradigm In RIF Releases

Obtaining an effective waiver of claims in the context of a reduction in force, an exit incentive, or other termination program is tricky. The Older Workers Benefit Protection Act (OWBPA) has numerous requirements that must be followed “just right” in true Goldilocks fashion. Compliance with the OWBPA is crucial because an employee, over the age … Continue Reading

Employee Calls You A “F****** Crook” While Complaining About Work And Wages: Now What?

It’s late afternoon. You call a three-month employee into a small conference room – along with two managers – for a talk about his attitude. He complains that he and his coworkers aren’t paid enough, don’t receive proper breaks, and the bathrooms are too far away; you say he can always work somewhere else. The … Continue Reading

Why Private Equity Funds Face Employment Risks

Suddenly, the advance sheets show a wave of litigation targeting private equity funds. See, e.g., Guippone v. BH S&B Holdings LLC, 737 F3d. 221 (2d Cir. 2013) (private equity funds potentially liable for WARN Act liability); Oaktree Capital Management, L.P. v. National Labor Relations Board, 452 Fed. Appx. 433 (5th Cir. 2011) (same for unfair … Continue Reading

Background Checks: Ban The (Procrustean) Bed?

Question: What does Edward Snowden (N.S.A.’s infamous document leaker) have in common with Aaron Alexis (who shot 12 people at the Washington Navy Yard last fall)? Answer: Their employers’ background check said it would be just fine to hire each. In January, the U.S. Department of Justice accused the background checking firm of taking shortcuts … Continue Reading

Franchisor Liability For Franchisee Employees: Damn Weasels

Weasel words, not epithets for employees with legal claims, are the problem. “…[C]ourts have been nearly uniform in holding that a franchisor should not be deemed to be an ‘employer’ … when plaintiff works for an independently owned franchise.”  McFarland v. Breads Of The World, 2011 WL 801815 (S.D. Ohio 2011) (granting franchisor Panera’s motion … Continue Reading

Reefer Madness: Employees May Use Medical Marijuana Yet Be Fired For Doing So

Despite twenty states allowing the use of medicinal marijuana and two more – Colorado and Washington – allowing recreational marijuana use, employers remain unaffected. Courts consistently find that employers may terminate employees who test positive for marijuana, regardless of whether such employees are using marijuana to treat a disability; whether they were not under the … Continue Reading

The UNEMPLOYED – A Protected Category Coming To a Jurisdiction Near You

It is now illegal in New York City for employers to discriminate against job applicants based on their employment status. This June 2013 amendment to New York City’s Human Rights Law (“NYCHRL”) — a law already relished by plaintiffs’ attorneys for its extraordinarily broad definition of discrimination — defines “unemployment” as “not having a job, … Continue Reading

Last One Out, Please Turn Off The Lights…But You Better Make Payroll First

Companies of all sizes, new or mature, sometimes go out of business. “California Or Bust” is legendary in American history, but “bust” sometimes happens despite everyone’s best efforts. If you are an officer or director of a company that is heading toward its final days, there is a critical wind-down task: final paychecks. The simple … Continue Reading

HR Life and Law in Hollywood

What all of us do—solve legal problems arising in the workplace—occasionally appears on film. Sometimes accurate; sometimes flawed; and sometimes funny. To collect those Hollywood moments, we sent our college interns (Elizabeth Hernandez, Heidi Savabi, and Chandler James) into NetFlix and YouTube to search for nominees. Now, we invite you to vote for your favorite … Continue Reading
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