Allyn & Fortuna LLPMegan J. Muoio, July 10, 2014 The Supreme Court has already begun to line up cases for its term that will begin in October 2014. One of the petitions for certiorari (the formal request for Supreme Court appellate review) that the Court has approved recently is Mach Mining, LLC v. Equal Employment Opportunity Commission. The Court’s review will focus on the law regarding the steps the EEOC must take before filing a lawsuit in federal court against an employer. The case, which comes to the Supreme Court on…
Employers Should Exercise Caution in Light of the EEOC’s Recent Action Against Separation Agreements
Megan J. Muoio, June 19, 2014 The Equal Opportunity Employment Commission has recently filed multiple claims challenging employers’ standard separation agreements. On February 14, 2014, the EEOC filed suit against CVS Pharmacy in the United States District Court for the Northern District of Illinois. The EEOC alleged that CVS’s standard separation agreement deters employees from exercising their rights to file discrimination charges and participate in EEOC investigations. The separation agreement in question contained standard, boilerplate language common to separation agreements and provisions that are commonly used by employers…
Nicholas Fortuna, June 4, 2014. The federal courts are struggling with what type of claims may be brought as a class action after the Supreme Court decisions in Comcast v. Behrand, (2013) and Wal-Mart v. Dukes, (2011). The latest battle is in the Second Circuit Court of Appeals in the matter of Jacob v. Duane Reade, Inc. regarding class certification of a wage and hour case. Wal-Mart established a stricter standard for what constitutes the required common claims within a class by mandating that the acts and/or decisions…
Paula Lopez, May 28, 2014. On April 22, 2014, the Court of Appeals for the Sixth Circuit, in EEOC v. Ford Motor Co., rejected Ford’s position that its employee’s presence at the workplace is necessary to perform her essential job functions and found that Ford failed to establish that telecommuting, in this instance, would impose an undue hardship on an employer obligated to provide a reasonable accommodation under the Americans with Disabilities Act (ADA). In doing so, the Sixth Circuit upended the typical deference given to an employer’s…
Megan J. Muoio, May 21, 2014. Recent Supreme Court decisions and federal legislation have addressed the issue of when it is appropriate for employees to discuss pay and salary issues amongst themselves and what options, if any, do employers have to prevent disclosures made among employees. Many employers discourage or outright prohibit employees from disclosing or discussing pay and salary information. These prohibitions are often contained within employment handbooks or simply conveyed verbally to employees. However, despite their frequent use, pay and salary confidentiality rules have been prohibited…
Megan J. Muoio, April 23, 2014. On June 11, 2013, Judge William H. Pauley of the United States District Court for the Southern District of New York issued a decision in Glatt v. Fox Searchlight Pictures that struck fear into the hearts of employers with unpaid internship programs in New York. The Court ruled that an employer had violated federal and state labor laws by classifying the plaintiffs as unpaid interns rather than employees and that the plaintiffs should have been paid for their work. The Glatt case…
Diana Uhimov, April 17, 2014. Employee misclassification occurs when employers treat workers who should be considered employees as independent contractors or simply do not report them and pay them “off the books”. The consequences for misclassification may include civil penalties, liability for employment taxes, class action lawsuits for unpaid wages, and even criminal prosecution. Although engaging an independent contractor may appear to streamline the hiring process for companies upfront, it is critical to ensure that workers are properly classified to prevent audits, investigations and potential lawsuits. The crackdown…
Paula Lopez, April 2, 2014. Employers are not blind to employees’ use of social media in and out of the workplace and they have a business interest in protecting confidential information, brand/image, employee morale and productivity, and insulating themselves from legal liability. As a result, employers should establish a social media policy regarding their employees’ use of employer-issued devices and their social media activities. Creating a comprehensive social media policy is important. Such a policy should specifically identify permitted and prohibited conduct, without being overly restrictive, and should…
Diana Uhimov, March 11, 2014. Early this month, a divided U.S. Supreme Court ruled that the whistleblower provision of the Sarbanes-Oxley Act of 2002 (SOX) protects employees of private contractors conducting work for publicly-traded companies in the same way as it protects the public company’s employees. The relevant part of the statute at issue states that “no public company … or any … contractor … of such company may [retaliate] against an employee … because of [SOX – protected activity].” The Court found that a plain reading of…
Paula Lopez, March 6, 2014. On February 26, 2014, in an effort spearheaded by Mayor Bill DiBlasio, the New York City Council passed significant amendments to the Earned Sick Time Act (ESTA), recently enacted in June 2013 and set to go into effect on April 1, 2014. Consequently, in a little over a month before ESTA was slotted to go into effect, several key provisions affecting the size of employer covered under the law, the implementation of the law, the permitted use of sick leave, and the law’s…