Too Fat to Work Here?—Not So Fast

Scott F. Cooper

A decision this week from the Ninth Circuit Court of Appeals has further fueled the debate over whether obesity is a protected impairment under federal and state law.

In Casey Taylor et al. v. Burlington Northern Railroad Holdings Inc. et al., Case No. 16-35205 (9th Cir. Sept. 17, 2018), Burlington rejected Taylor’s application to become an electronic technician because his Body Mass Index (“BMI”) placed him in the “severely” or “morbidly” obese category. Complicating this case is that the company’s chief medical officer otherwise found Taylor qualified for the position. The company also was willing to reconsider the application if Taylor undertook additional pre-hire medical screening at his own expense. The Ninth Circuit earlier this year held that shifting pre-hire medical examination costs to an applicant is unlawful.

The Ninth Circuit certified the issue and sent it to the Supreme Court of Washington to determine its application under Washington state law. Pending that ruling, the Ninth Circuit will then resolve the issue under the federal Americans with Disabilities Act (“ADA”). How these decisions come out could have sweeping implications for employers who have acted against obese job applicants and employees. Continue reading “Too Fat to Work Here?—Not So Fast”

Update on the New York State Anti-Harassment Law—Guidance Issued, but It’s Not Final

Anna Svensson

As discussed in our prior blog post, New York State passed anti-sexual harassment legislation earlier this year, which, in part, requires that New York employers adopt a sexual harassment policy and conduct training. On August 23, 2018, the Office of Governor Andrew M. Cuomo released the following draft documents relating to these requirements: Continue reading “Update on the New York State Anti-Harassment Law—Guidance Issued, but It’s Not Final”

Poster and Notice Requirements for “Stop Sexual Harassment in NYC Act”

Anna Svensson

Recently, the New York City Commission on Human Rights (the “Commission”) released the Fact Sheet and Notice referenced in the Stop Sexual Harassment in NYC Act (the “Act”).

The Act, which was signed into law on May 9, 2018, requires New York City-based employers with at least 15 employees (whether or not all of the employees work in the City) to implement over the course of the next year significant mandates aimed at addressing sexual harassment in the workplace, including posting and fact sheet distribution requirements. The Commission has now followed through with the officially sanctioned notice and poster. Continue reading “Poster and Notice Requirements for “Stop Sexual Harassment in NYC Act””

De Minimis” May Be Down, but It’s Not Out—And What Does It Mean for Employer Rounding Policies in California?

Laura Reathaford, Caroline Powell Donelan, and Caitlin I. Sanders

On July 26, 2018, the California Supreme Court issued its long-awaited opinion in Troester v. Starbucks Corp., __ P.3d __ (2018). In the days that have followed, legal headlines have lamented the presumed “death” of the de minimis doctrine. But is Troester really that simple? And what does it mean for employer rounding policies?

The issue in Troester was whether the federal Fair Labor Standards Act’s (“FLSA”) de minimis doctrine applies to claims for unpaid wages under certain provisions of the California Labor Code. For the better half of the past century, the de minimis doctrine has been applied in the federal wage and hour context to excuse payment of wages under the FLSA for insubstantial or insignificant periods of time. Continue reading ““De Minimis” May Be Down, but It’s Not Out—And What Does It Mean for Employer Rounding Policies in California?”

PA Raising Salary Threshold for White Collar Exemptions—Déjà Vu All Over Again … or Worse?

Jason E. Reisman

Here we go again, Pennsylvania employers, but this time on the local front, rather than nationally. Following up on Governor Wolf’s announcement in January that Pennsylvania needed to “modernize” its outdated wage and hour regulations—last updated in 1977—governing the executive, administrative, and professional exemptions under the Pennsylvania Minimum Wage Act, the Pennsylvania Department of Labor and Industry (“DOLI”) published proposed new regulations at the end of June.

The DOLI’s proposal includes significantly raising the minimum salary threshold required for these “white collar exemptions”—sound familiar? Worse yet, these proposed changes will ultimately increase the new salary minimum above the threshold originally proposed for the Fair Labor Standards Act (“FLSA”) by the U.S. Department of Labor (which, as you undoubtedly recall, was enjoined and then struck as over-reaching by an Obama-appointed federal judge in Texas). Continue reading “PA Raising Salary Threshold for White Collar Exemptions—Déjà Vu All Over Again … or Worse?”

Competitive Hiring Tool—Paying Off Employees’ Student Loans—Gains Traction

Daniel L. Morgan

According to the Pew Research Center, as of June 2017, the total amount of U.S. student debt was $1.3 trillion; and 53 percent of all Americans under the age of 30 with a bachelor’s degree or higher had an outstanding student loan.

Why the Large Uptick in Student Debt Has Caught the Attention of Employers

Many employers are discovering that benefit programs such as 401(k) plans, with employer matching contributions, hold little attraction for recent grads, who are burdened by student loans.

As the unemployment rate continues to drop, and the competition among employers for professional workers has begun to heat up, a trend appears to be developing among accounting firms, financial investment firms, and other businesses that hire recent grads: they offer to provide “student loan repayment benefits.” Continue reading “Competitive Hiring Tool—Paying Off Employees’ Student Loans—Gains Traction”

The Epic Systems Decision: Where Do Employers Go from Here?

Emery Gullickson Richards

The U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis has significant ramifications for the scope of class action waivers in employee arbitration agreements. In each of the three consolidated cases that the Court’s opinion addressed, the plaintiffs were pursuing class/collective actions with Fair Labor Standards Act (“FLSA”) claims for unpaid overtime. Plaintiff Sheila Hobson’s FLSA claim in the Murphy Oil case had been dismissed by the trial court as a result of the arbitration provision in the employment agreement she signed when she started work at a gas station in Alabama. By contrast, plaintiff Jacob Lewis, a technical communications employee, had overcome a motion to dismiss his FLSA overtime class action in the Epic Systems case by arguing that a class action waiver in an arbitration agreement that had been emailed to him by his employer was unenforceable. In the Ernst & Young case, plaintiff Stephen Morris sought unpaid overtime under the FLSA and the California Labor Code for working long hours during audit season. As a result of the Supreme Court’s ruling, after remand, all of these claims now appear destined for arbitration unless they are resolved. The Epic Systems decision represents a broader affirmation, however, that arbitration agreements are enforceable regardless of the nature of an employee’s claim, even if the claims are brought pursuant to employment statutes that explicitly provide for class or collective actions. Continue reading “The Epic Systems Decision: Where Do Employers Go from Here?”