Caroline Powell Donelan and Taylor C. Morosco
On April 24, 2019, the U.S. Supreme Court issued its 5–4 opinion in Lamps Plus, Inc., et al. v. Varela holding that class arbitration is only allowed when the parties’ agreement explicitly allows for it. In other words, when an arbitration agreement is silent or even ambiguous as to whether class-wide proceedings are allowed, claims must be arbitrated on an individual basis.
Lamps Plus is the latest decision from our highest court bolstering the enforceability of individual arbitration in the workplace.
In this post, we’ll take a semi-deep dive into Lamps Plus and evaluate potential implications for your workplace as well as for future litigation strategies. Continue reading “Have Employers Taken Home the Iron Throne with Lamps Plus?”
Kevin M. Passerini
We wrote an earlier post about the Third Circuit’s opinion in ADP, LLC v. Rafferty, et al., confirming courts’ blue penciling authority (see here); but the Third Circuit’s analysis of ADP’s two-tiered restrictive covenant structure is also worth discussing, as it may have employers doing some head scratching.
Why the focus on ADP’s two-tiered contracting approach?
ADP’s first-tier agreements for new hires included confidentiality obligations and a one-year customer non-solicit tailored to the employee’s assigned role and contacts, but no non-compete. ADP’s second-tier agreements (used in connection with stock incentives offered to high-performing employees) added a one-year territory-based non-compete and broadened the scope of the one-year non-solicit to include all customers and business partners for which ADP has provided services and all prospects for which ADP reasonably expects to provide services during the two-year period following the employee’s termination—regardless of the employee’s responsibility for them or access to confidential information about them during employment. Continue reading “Third Circuit Indicates Support for Use of Broader Restrictive Covenants in Post-Hire Agreements Rather Than a Uniform Approach at Hiring”
Anthony A. Mingione
New York State has this week enacted sweeping election reforms that go into effect immediately. The changes will impact private employers across the state. Section 3-110 of the New York Election Law now permits all registered voters to request and obtain up to three hours of paid time off, regardless of their schedule, to vote in any public election. Employers will be permitted to designate whether the time off will be taken at the beginning or end of an employee’s shift.
To qualify, employees must be registered to vote and must provide at least two days’ advance notice to their employer of the need for time off to vote. The law is silent on whether the employer can count voting time against other paid time off programs it provides. We anticipate that regulations will be issued relating to this and other elements of the law and we will report on them as they are published.
Employers also must comply with a voting rights posting requirement. Employers are required to post a notice that explains the employees’ right to paid time off for voting. You can see a version of the approved poster on the New York State Board of Elections website here.
The notice must be posted in a conspicuous location in the workplace where it can be seen as employees come or go to their place of work, at least 10 days before a public election, and must remain up until the polls close on election day.
Employers should take note that these rules apply to all public elections; the next such statewide election will be the New York primaries on June 25, 2019.
Asima J. Ahmad and Anthony B. Haller
Employers grappling with the reverberations of the #MeToo movement have been able to take some solace that, with the right policies and complaint process, they can insulate themselves against liability in sexual harassment cases where the employee does not make a complaint under the internal procedure. That insulation is possible given a well-established and objectively provable legal framework.
What we know…
Where the alleged harassment is by a coworker, if the employee/victim does not complain, there is no liability because the failure to lodge a complaint and allow the employer to investigate objectively avoids any inference of negligence. Essentially, where the employer would not otherwise know of the harassment involving coworkers, it cannot be responsible.
On the other hand, if the harassment is by a supervisor, there is no resulting tangible job action (such as demotion or termination), and the employee does not complain, the employer can assert the affirmative defense established by the Faragher-Ellerth cases decided by the U.S. Supreme Court. Successful assertion of that defense involves the employer showing that it exercised “reasonable care” to prevent workplace harassment and discrimination and that the employee “unreasonably failed” to take advantage of the preventative or corrective opportunities that were in place. Continue reading ““The Times They Are A-Changing”: Can the Employer Affirmative Defense Survive in the #MeToo Era?”
Kevin M. Passerini
On April 26, 2019, the U.S. Court of Appeals for the Third Circuit weighed in on a pair of district court rulings which had denied ADP, LLC’s requests for preliminary injunctive relief against two former employees who ADP alleged had violated post-employment restrictive covenants. In ADP, LLC v. Rafferty, et al., the Court unanimously reversed the rulings and remanded to the district courts with instructions to “blue pencil the agreements and reconsider the four-factor preliminary injunction standard” as it relates to the former employees’ non-competition and customer non-solicitation obligations. The Third Circuit’s opinion restates what has long been the law in New Jersey and clarifies for anyone still in doubt that “New Jersey has evolved from invalidating overbroad restrictive covenants outright to presumptively ‘compress[ing] or reduc[ing]’ their scope ‘so as to render the covenant reasonable’” (alterations in original; citations omitted).
What is “blue penciling”? Continue reading “Third Circuit Confirms Courts’ Authority to Salvage Over Broad Restrictive Covenants”
Mark Blondman and Emery Gullickson Richards
As we reported last month Judge Tanya Chutkan of the United States District Court for the District of Columbia ruled on March 4 that the Office of Management and Budget (“OMB”) was to reinstate the EEOC’s 2016 pay reporting Rule, the enforcement of which had been blocked by the Trump administration. Under that Rule, which was to have been effective with the filing of EEO-1 forms in March 2018, employers with more than 100 employees would be required to collect and report aggregated W-2 data and hours worked, based on gender, race, and ethnicity, in 10 job categories, across 12 pay ranges, for each of a company’s physical locations.
The one issue left unanswered by Judge Chutkan’s March 4 Order was when the Equal Employment Opportunity Commission (“EEOC”) was required to collect the employee pay data. This morning, Judge Chutkan, held that the Commission had to collect the data by September 30, 2019. The EEOC has indicated it will make the collection portal available by July 15 and provide information and training to employees prior to that date.
The clock is ticking and, absent a successful appeal of Judge Chutkan’s March 4 decision, employers should now be collecting the data required to be included in the EEO-1 form and be prepared to file those reports on or before September 30. Members of our Firm’s Labor & Employment Practice Group are available to assist in navigating the EEO-1 Form.
Earlier this year, the National Labor Relations Board (“NLRB” or “the Board”)—with its 3-to-1 Republican-appointed majority—returned to its long-standing common-law test for determining whether workers are independent contractors (“ICs”) or employees, expressly overruling an Obama-era decision, which it said impermissibly altered the test by severely limiting the significance of “entrepreneurial opportunity” to the analysis. The importance of “independent contractor” status lies in the fact that ICs are not covered by the National Labor Relations Act (“NLRA”).
In SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338 (Case No. 16-RC-010963), the Trump Board addressed the issue of whether franchisees who operated shared-ride vans were ICs and thus excluded from coverage under the NLRA. Relying on common-law agency analysis, the Board upheld a regional director’s decision finding the franchisees to be ICs. That traditional common-law analysis involves application and consideration of the following factors: Continue reading “Quick Flashback—NLRB Overruled Obama Board’s “Independent Contractor” Test”