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”

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?”

Epic Shift: Supreme Court Enforces Class Action Waivers in Arbitration Agreements

Emery Gullickson Richards

The Supreme Court issued a landmark decision on May 21, 2018, which has widespread implications for all employers. In Epic Systems Corp. v. Lewis, a 5-4 opinion written by Justice Gorsuch, the Supreme Court held that arbitration agreements and class/collective action waivers are enforceable, putting to rest any argument that the National Labor Relations Act prevents or limits their enforceability. The decision provides employers further options for limiting litigation risk, particularly with respect to costly wage and hour collective actions. The decision also contains important implications for employers that maintain or are considering implementing arbitration agreements in the workplace, as there is no longer any identified legal impediment to the concept of an employer requiring its employees to waive the ability to bring a class or collective action under federal, state, and local employment laws. Continue readingEpic Shift: Supreme Court Enforces Class Action Waivers in Arbitration Agreements”

Employers Score Major Win as Predicted Changes at National Labor Relations Board Start to Come True

NLRB Reverses Landmark Browning-Ferris Decision and Loosens Test for Joint Employer Status

Scott F. Cooper

On Thursday, December 14, 2017, employers scored a significant victory at the National Labor Relations Board. The Board, in a straight 3-2 partisan vote, reversed its 2015 decision in Browning-Ferris Industries and eliminated the rule that employers and their contractors or franchisees can be deemed a “joint employer” even when one company does not exert direct control over the second entity’s workers.

In Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., NLRB Chair Philip Miscimarra, joined by the two newest NLRB board members, William Emanuel and Marvin Kaplan, significantly reduced the scope of joint employer status in reversing BFI. The issue over the scope of joint employer status at the Board has been simmering for some time, as NLRB Chair Miscimarra wrote a dissenting opinion in the 2015 BFI decision, which was issued under the Obama administration when Democrat members held the Board majority. Continue reading “Employers Score Major Win as Predicted Changes at National Labor Relations Board Start to Come True”

NLRB Chairman Miscimarra’s Last Stand – Bye-Bye “Micro Units”

Jason E. Reisman

Well, I was wrong. In my last post, I said that it looked like the “quickie election” rules were up next for the National Labor Relations Board to address. Clearly, those rules are still on the radar, as public input is in progress.

However, Republican-appointed Chairman Phil Miscimarra is making up for all of the labor-friendly opinions during Obama’s administration where he found himself in the minority, left to argue seemingly in vain in some classic dissenting opinions. Now, he’s been leading the majority charge to “right” as many Obama Board “wrongs” as possible before stepping away from the Board on Saturday. Continue reading “NLRB Chairman Miscimarra’s Last Stand – Bye-Bye “Micro Units””

NLRB Kicks Things into Gear – To Benefit Employers!

Jason E. Reisman

After swearing in the new general counsel, Peter Robb, last month, and given the full complement of members, the National Labor Relations Board has kick-started its efforts to right the wrongs of the Obama Board and make life a little easier for employers.

Led by Chairman Phil Miscimarra (a Republican who unfortunately is stepping down at the end of his term next week), the NLRB has attacked and reversed two critical issues that have plagued employers for the last several years: Continue reading “NLRB Kicks Things into Gear – To Benefit Employers!”

The NLRB Has a New Member, but Its Transformation Is Not yet Complete

Leigh Ann Buziak

On Monday, September 25, 2017, in a party-line vote of 49-47, the Senate (finally) confirmed William Emanuel to fill the only remaining open seat on the National Labor Relations Board for a five-year term. Mr. Emanuel joins fellow Trump appointee Marvin E. Kaplan, and, along with Chairman Philip A. Miscimarra, Republicans now control the majority on the five-member Board. Mr. Emanuel is a long-time management-side labor lawyer based in California at the law firm Littler Mendelson. Prior to his time with Littler Mendelson, Mr. Emanuel represented employers at Jones Day and Morgan, Lewis & Bockius. Continue reading “The NLRB Has a New Member, but Its Transformation Is Not yet Complete”