Quick Flashback—NLRB Overruled Obama Board’s “Independent Contractor” Test

Rosemary McKenna

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”

Finally! U.S. Supreme Court to Weigh in on Title VII LGBTQ+ Protection

Jason E. Reisman and Mark Blondman

Just this morning, the U.S. Supreme Court finally agreed to hear three cases from the circuit courts that split on whether Title VII of the Civil Rights Act of 1964 protects against discrimination in the workplace based on sexual orientation and gender identity. The basic question boils down to whether the word “sex” includes a protection for LGBTQ+ employees.

EEOC Initiative/Trigger. Though there have been efforts over the last 50+ years to seek such protection under Title VII, the true impact came from the Equal Employment Opportunity Commission’s (“EEOC”) push beginning in 2012, when it issued an administrative ruling holding that gender identity discrimination constitutes sex bias and therefore is protected. As everyone probably knows, in Hively v. Ivy Tech Community College, the U.S. Court of Appeals for the Seventh Circuit jumped into the fray with both feet in 2017, finding that Title VII’s “sex” does indeed include sexual orientation. In fact, before the full Seventh Circuit heard that case, a three-judge panel on that court had stated that it was a “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act”—a reference to same sex marriage being legal. Continue reading “Finally! U.S. Supreme Court to Weigh in on Title VII LGBTQ+ Protection”

New Jersey Governor Signs #MeToo Bill, Potentially Impacting All Employment and Settlement Agreements—Employers Beware!

Asima J. Ahmad and Kevin M. Passerini

As predicted in a previous post, New Jersey Governor Phil Murphy signed Senate Bill 121 last month. This bill has two primary effects:

      1. “A provision in any employment contract [(other than a collective bargaining agreement, which is excepted)] that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment” is now against public policy and unenforceable.
      2. “A provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment” is now unenforceable “against a current or former employee who is a party to the contract or settlement,” but remains enforceable against the employer unless “the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.”

The practical effect of these provisions is a ban on companies’ use and enforcement of nondisclosure provisions to conceal claims of discrimination, retaliation, and harassment and a ban on companies’ efforts to avoid or frustrate application of New Jersey law through, among other things, forum-selection, dispute resolution, and choice-of-law provisions. While the law does permit employers to defend themselves against an employee who publicizes information related to such claims, in order to exercise that right, “[e]very settlement agreement resolving a discrimination, retaliation, or harassment claim by an employee against an employer shall include a bold, prominently placed notice that although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.” Continue reading “New Jersey Governor Signs #MeToo Bill, Potentially Impacting All Employment and Settlement Agreements—Employers Beware!”

“Obesity Alone” Is Not a Disability under the New Jersey Law against Discrimination

Rosemary McKenna

Earlier this month, a three-judge panel for the Appellate Division of the Superior Court of New Jersey affirmed a 2018 trial court decision granting summary judgment against a self-described obese former bus driver for defendant Community Bus Lines, Inc. (“Community”), and dismissing the driver’s claim for violation of the New Jersey Law Against Discrimination (“NJ LAD”). In doing so, the appellate court held that “obesity alone is not protected under the NJ LAD as a disability unless it has an underlying medical cause.” Because plaintiff, in part, failed to present any direct or circumstantial evidence that defendants perceived the driver as disabled due to a medical condition that caused him to be overweight, the appellate court found his claim was without merit.

Case Background

The plaintiff in this matter worked as a bus driver for Community for 10 years during which time he weighed between 500 and 600 pounds. To maintain his status as an active bus driver, he was required to undergo a medical examination every two years and obtain medical certification verifying his fitness to drive. In 2015, a doctor certified by the United States Department of Transportation (“DOT”) conducted plaintiff’s examination and temporarily disqualified him from driving a bus pending further testing. The plaintiff never followed through to complete the required additional testing and was therefore placed “out of service.” Despite his failure to schedule the follow-up testing, plaintiff’s supervisor referred him for a second opinion to another doctor, who confirmed the prior conclusions and found that further testing was needed before a medical certification could be issued. Neither doctor who examined plaintiff determined that he was disabled but only that further testing was required before he could be certified. Plaintiff again did not pursue the required testing and remained on leave. Continue reading ““Obesity Alone” Is Not a Disability under the New Jersey Law against Discrimination”

Minimize Litigation Risks When Using Biometric Data

Ana Tagvoryan, Brooke T. Iley, and David J. Oberly

The following article was published on SHRM.org.

This is the second article in a two-part series on biometric technology and the law. The first article explains the legal requirements for using biometrics in the workplace. This article provides tips on avoiding liability.

Under various state laws, the potentially extensive legal exposure to individual and class-action lawsuits stemming from the collection, storage and use of biometric data should give employers pause before they implement biometric-data programs in the workplace.

Companies that acquire and use biometric data face the thorny task of complying with an intricate web of regulations governing the use of that data—a task that will only become more difficult as more states adopt their own versions of biometric data privacy legislation.

A new wave of biometric-data lawsuits, particularly in Illinois, will likely build as a result of the Illinois Supreme Court’s Jan. 25 ruling in Rosenbach v. Six Flags Entertainment Corp., No. 123186, which determined that plaintiffs can pursue claims for mere technical violations of Illinois’ Biometric Information Privacy Act (BIPA), even absent any actual injury or harm. Many lawsuits have not centered on challenges to employers’ use of biometric data but instead have focused on the collection of such data.

Fortunately, employers can implement several best practices to minimize the risk of becoming embroiled in litigation stemming from the use of workers’ biometric data. Continue reading “Minimize Litigation Risks When Using Biometric Data”

Learn the Rules on Employers’ Use of Biometric Data

Ana Tagvoryan, Brooke T. Iley, and David J. Oberly

The following article was published on SHRM.org.

This is the first article in a two-part series on biometric technology and the law. This article explains the legal requirements for using biometrics in the workplace. The second article provides tips on avoiding liability.

With the recent rapid advancement of biometric technology, more employers have begun relying on biometric data to accomplish a range of objectives in the workplace.

According to a 2018 survey by Gartner, 6 percent of U.S., European and Canadian companies surveyed tracked workers using biometrics.

Employers who use biometrics can achieve real economic and security benefits, but the practice comes with litigation risks.

Three states—Illinois, Texas and Washington—have enacted laws regulating biometric data to protect employee privacy concerns. An individual’s biometric information is not a secure identifying feature once it has been compromised. Continue reading “Learn the Rules on Employers’ Use of Biometric Data”

Trifecta! DOL Issues Proposed “Employer-Friendly” Joint Employer Rule

Jason E. Reisman

Yesterday, the U.S. Department of Labor (“DOL”) completed the wage and hour trifecta, issuing the third of its critically acclaimed proposed rules—this one redefines (or clarifies, if you prefer) the regulations addressing the concept of “joint employment.” Joint employment under the Fair Labor Standards Act (“FLSA”) is an important concept as it often is used to hold multiple entities liable for the minimum wage and overtime violations relating to a group of employees. The existing regulations have not been materially updated in more than 60 years—needless to say, the nature and scope of business interactions have changed materially over that time. Continue reading “Trifecta! DOL Issues Proposed “Employer-Friendly” Joint Employer Rule”