Labor & Employment Law

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Labor & Employment Law

DISCRIMINATION—DISABILITY—6th Cir.: Mention of depression, post-termination diagnoses, not enough to revive employee’s ADA claims

The General Motors employee was never diagnosed with any medical condition until after her termination and never sought medical help for any symptoms or conditions from which she was suffering while employed. The single, unsubstantiated statement by ...

DISCRIMINATION—DISABILITY—6th Cir.: Mention of depression, post-termination diagnoses, not enough to revive employee’s ADA claims
Law Firms Mentioned:Clark Law Group | Cooley | Dinsmore & Shohl | Eccleston and Wolf, P.C. | Fredrikson & Byron | Gasiorek, Morgan, Greco, McCauley & Kotzian | Jackson Lewis, P.C. | Jones & Associates | Law Offices of David Y. Imai | Maier Gutierrez & Associates | Mintz | Muller, Muller and Associates | Ogletree Deakins | Pitta & Giblin | Renne Public Law Group | Tobias, Torchia & Simon
Organizations Mentioned:ALJ Home Improvement Inc. | Alameda Health System | Amazon | Big Hammer Inc. | Forgotten Coast Crane Service Inc. | General Motors, LLC | Krauss-Maffei Corp. | Mad Dog Design and Construction Company Inc. | Marcorp, Ltd. | Marshall-March Funeral Home LLC | Marshall-March Funeral Home of Maryland, Inc. | Marshall-March Funeral Homes | Mayo Clinic | New York Hotel and Motel Trades Council, Local 6 | O’Connell & Lawrence, Inc. | U.S. Engineering | U.S. Engineering Services | Wynn Las Vegas, LLC | Wynn Resorts Ltd.
STRATEGIC PERSPECTIVES—Top labor and employment developments for January 2023
February 8, 2023
Kathleen Kapusta, J.D.

In case you missed the in-depth coverage of Labor and Employment Law Daily during January, here’s a recap of some key developments in the L&E community. Highlights include : Supreme Court: High Court hears argument stemming from Ohio National Guard l...

EXPERT INSIGHTS—Considerations for US companies hiring abroad
February 8, 2023
Chris Stack

Whatever the rationale, there are important employment-related issues that you need to consider each time you plan to hire in a new jurisdiction. There are many reasons your business might consider hiring in or transferring current employees to a cou...

EXPERT INSIGHTS—Deploying a holistic approach to automated employment decision-making in light of NYC's AEDT Law
February 8, 2023
Corbin Carter & Michelle Capezza & Evan M. Piercey

As a threshold matter, employers must recognize the myriad ways they may already be using automated employment decision tools that fall within the ambit of the law. The Equal Employment Opportunity Commission's first commission meeting of 2023, entit...

DISCRIMINATION—DISABILITY—6th Cir.: Engineer with PTSD failed to show that manufacturer should have changed his supervision
February 8, 2023
Jason Albright, J.D.

The manufacturer’s HR director had noted seven instances in which the engineer’s supervisor included the wrong employees’ names on their respective evaluations. A former Field Service Engineer for Krauss-Maffei Corporation could not establish that th...

DISCRIMINATION—RACE—D. Md.: Black female consultant fired day after probationary status was extended advances some claims
February 8, 2023
Marjorie Johnson, J.D.

Though her supervisors had expressed concerns about her writing abilities, the record showed they decided the day before her termination to extend her probationary period. A Black construction consultant who claimed she was the only non-Caucasian in ...

DISCRIMINATION—SEXUAL HARASSMENT—D. Nev.: Claims based on employers’ failure to respond to Steve Wynn’s alleged sexual harassment survive
February 8, 2023
Pamela Wolf, J.D.

Given the significant publicity surrounding Wynn’s alleged sexual harassment, the employers’ lack of corrective measures allowed an inference that they sanctioned it, according to the court. Despite their employers’ contention that their sexually hos...

EMPLOYEE LEAVE—D. Minn.: Former Mayo surgeon’s direct evidence of FMLA discrimination enough to defeat summary judgment
February 8, 2023
Todd Harrison, J.D.

She was warned by her colleagues that her intention to take 12 weeks of maternity leave could have a negative impact on her chances of promotion. A surgeon employed by the Mayo Clinic as a three-year senior associate consultant advanced her claims of...

LABOR—ARBITRATION—S.D.N.Y.: Hotel employee must plead bad faith to proceed against union for breach of duty
February 8, 2023
Justin Marcus Smith, J.D.

Because the putative “breach of contract” involved the union and the employer, not the employee, the court concluded that the employee had brought a “hybrid” claim involving both the LMRA and an alleged breach of the union’s duty to represent the emp...

LABOR—NLRB WEEKLY SUMMARY—Weekly summary of NLRB decisions
February 8, 2023
WK Editorial Staff

The Summary of NLRB decisions for the week of January 23 – 27, 2023 is now available on the NLRB’s website. The summary can be accessed by clicking this link . Cases: AgencyNews Labor NLRBWeeklySummary

USERRA, VETERANS—D.D.C.: Employer granted motion to amend jury verdict to reduce compensatory and liquidated damages
February 8, 2023
Ronald Miller, J.D.

The court granted the employer’s motion to alter the judgment to the extent that it amended the verdict to a sum of $75,881 in compensatory damages and a sum of $75,881 in liquidated damages. A federal district court in the District of Columbia reduc...

WAGE-HOUR—CLASS ACTIONS—Cal. App.: Trial court’s grant of demurrer for employer in wage suit against health system reversed
February 8, 2023
Ronald Miller, J.D.

On appeal, the trial court ruling was reversed regarding the “sovereign powers” doctrine, and whether a hospital authority was an exempt municipal corporation. A trial court erred in granting a hospital authority’s demurrer to class action claims bro...

DOL NEWS—OSHA proposes $687K fine for fall hazards after fatalities; struck-by, crushed-by hazards also penalized
February 8, 2023
Jonathan Anderson

Employees were seen working on a roof without fall protection after two other workers died from falls. Unrelated employers face a total of $283,805 in proposed penalties for various hazards. After employees were seen working on the roof of a New Jers...

EEOC NEWS—Auto care employer to pay $200K to settle sexual harassment lawsuit
February 8, 2023
Brandi O. Brown, J.D.

According to the EEOC, male employees were subjected to repeated physical abuse and sexual comments, including grabbing and simulated sex, and a female employee was subjected to offensive verbal comments and demeaning work assignments. Monro, Inc., t...

REPORTS—AFL-CIO makes recommendations for creating worker-centered digital trade agenda
February 8, 2023
Brandi O. Brown, J.D.

The first-of-its-kind proposal also includes recommendations related to employers’ use of artificial intelligence. The AFL-CIO has announced its release of a report detailing the labor organization’s recommendations for creating a worker-centered dig...

Labor & Employment Law

DISCRIMINATION—DISABILITY—W.D. Okla.: Terminated drilling account manager with heart condition may proceed on disability claims

The employer said it fired him due to a business downturn caused by the COVID-19 pandemic, but the former sales manager alleged he was fired because of his heart condition. A company that provides industrial services to oil and gas operators and expe...

DISCRIMINATION—DISABILITY—W.D. Okla.: Terminated drilling account manager with heart condition may proceed on disability claims
Law Firms Mentioned:Abernathy Roeder Boyd & Hullett | Berenson | Fisher & Phillips, LLC | Gordon & Rees Scully Mansukhani | Hammons Hurst & Associates | Law Office of Kevin Mintzer | Law Office of Nathaniel B. Smith | Norby & Welding | Ogletree Deakins [#1, #2] | Richardson Law Firm | Rush & Nicholson | Simmons Perrine Moyer Bergman | Wiggins Childs Pantazis Fisher & Goldfarb | Woodside Law | Young & White Law Office
Organizations Mentioned:AlaTrade, Inc. | City of Sherman, Texas | Clean Harbors Environmental Services Inc. | Home Performance Alliance, Inc. | Millard Public Schools | Precision of New Hampton, Inc. | School District No. 28-0017 of Douglas County, Nebraska
EXPERT INSIGHTS—Cal/OSHA and workplace violence prevention: What is an employer's duty under current standards and guidelines?
February 7, 2023
Karen Tynan & Robert C. Rodriguez

With recent workplace violence incidents in the news, employers may want to consider the steps they are taking to prevent incidents of workplace violence. Workplace violence is a growing concern in California and across the country, as evidenced by n...

EXPERT INSIGHTS—Federal prosecutors offer incentives to self-report workplace misconduct: some practical tips and reminders for employers
February 7, 2023
Jeffrey Shapiro

The duty to investigate arises whenever – and however – the company becomes aware of conduct that may be a serious violation of law or policy. Federal prosecutors recently outlined a new approach to the way they treat criminal corporate misconduct – ...

ARBITRATION—M.D. Fla.: Delegation provision remained intact, applicable after void litigation limit severed from agreement
February 7, 2023
Tulay Turan, J.D.

The parties clearly and unmistakably evinced an intent to delegate arbitrability questions to the arbitrator. A federal district court in Florida granted Home Performance Alliance’s motion to compel arbitration on the arbitrability of an employee’s d...

DISCRIMINATION—AGE—M.D. Ala.: Plant employee purportedly fired for refusing to sit made out age bias claim
February 7, 2023
Brandi O. Brown, J.D.

The 69-year-old employee alleged that his supervisor accused him of acting “confused” and threatened him with the police when he initially said he did not want to sit and wanted to return to work. A poultry processing plant worker who alleged he was ...

DISCRIMINATION—RACE—E.D. Tex.: Caucasian animal control officer failed to show promotion denial was based on race
February 7, 2023
Justin Marcus Smith, J.D.

The municipal employer presented a number of nondiscriminatory reasons for not promoting him, but the employee failed to convincingly rebut them, thus warranting entry of summary judgment for the municipality. Although a white animal control officer,...

RETALIATION—S.D.N.Y.: NYC Council employee’s transfer to more distant office supports retaliation claims
February 7, 2023
Kathleen Kapusta, J.D.

The transfer occurred shortly after she talked to a compliance officer investigating allegations of harassment in the office of the council member for whom she worked. A communications and events manager for a New York City Council Member, who allege...

STATE-LAW CLAIMS—Neb. Sup. Ct.: Teacher underpaid for several years could not recover for years prior to year when mistake was found
February 7, 2023
Ronald Miller, J.D.

Even if the timeliness provision did not bar the employee’s claims, the trial court did not err in finding that there was no agreement to correct salary errors retroactively beyond the beginning of the school year in which the error was dis­covered. ...

WAGE-HOUR—CLASS ACTIONS—N.D. Iowa: Manufacturing employee’s attempt at class certification falls short
February 7, 2023
Todd Harrison, J.D.

Although the employee asserted that payment of bonuses was guaranteed based on advertisements and an “effective hourly rate” listed on paystubs, others understood that bonuses were discretionary. A federal district court in Iowa declined to certify a...

DOL NEWS—Employer arrested after failing to provide information in FLSA investigation
February 7, 2023
Patricia K. Ruiz, J.D.

The arrest stems from the employer’s refusal to respond to a January 2022 subpoena. The U.S. Marshals Services arrested the owner of Il Vizio Restorante Italiano Corp., which operates two restaurants in Long Island, New York, for failing to provide i...

EEOC NEWS—Commission reaches settlements with two employers accused of sex discrimination
February 7, 2023
Brandi O. Brown, J.D.

One employer was accused of failing to hire or promote women, while another ignored sexually hostile work environments experienced by female employees and customers at multiple locations. Joe & the Juice to pay $715K. A nationwide restaurant that spe...

STATE LEGISLATION—NEW JERSEY—Governor signs legislation expanding rights and protections for temp workers
February 7, 2023
Brandi O. Brown, J.D.

Governor Murphy signed the “Temporary Workers’ Bill of Rights” on February 6. On Monday, New Jersey Governor Phil Murphy signed a revised version of A1474 /S511 , known as the "Temporary Workers' Bill of Rights," which expands the rights and protecti...

Labor & Employment Law

ARBITRATION—9th Cir.: Employer waived right to compel signatories of agreement to arbitrate their claims

The employer challenged the merits of the legal theory underlying the claims that the employee raised in three different courtrooms, all without even attempting to reserve its arbitration right. Relying on established Ninth Circuit precedent, the app...

ARBITRATION—9th Cir.: Employer waived right to compel signatories of agreement to arbitrate their claims
Law Firms Mentioned:Barber Law Firm | Breskin Johnson & Townsend | Faruqi & Faruqi, LLP | Fisher & Phillips | Gignilliat, Savitz & Bettis | Jackson Lewis | K&L Gates | Kolman Law | Littler Mendelson | Marshall Dennehey Warner Coleman & Goggin | McGuireWoods | McLawhorn & Russell | Mountain States Legal Foundation | Nauheim Law Office | Peterson, Johnson & Murray | Terrell Marshall Law Group | The Keleher Appellate Law Group | The Moran Law Group | WH Law | Weil, Gotshal & Manges, LLP
Organizations Mentioned:Activision Blizzard Inc. | Affiliated Computer Services Inc. | Affiliated Computer Services LLC | All-In-One Staffing, LLC | Atlas Box and Crating Co., Inc. | Buckingham Township, Pennsylvania | Colorado Department of Corrections | Domino’s Pizza | Domtar A.W., LLC | Grace Management Services, Inc. | LiveBridge Inc. | Parris Pizza Company, LLC | Saks & Co. LLC | Saks Fifth Avenue LLC | Saks Inc. | Sprenger Healthcare of Port Royal, Inc. | Village of University Park, Illinois | Xerox Business Services, LLC
EXPERT INSIGHTS—Gainesville first city in Florida to pass Fair Chance Hiring Law restricting private employers' use of criminal history
February 6, 2023
Chad Kaldor, Rod Fliegel & William J. Simmons

The City's law is actually one of the more onerous laws and is similar in some respects to the New York City Fair Chance Act. The city of Gainesville has passed a Fair Chance Hiring law governing an employer's use and consideration of a job applicant...

EXPERT INSIGHTS—Seattle blazing a trail for cannabis industry employees: Here’s what their employers need to know
February 6, 2023
Catharine Morisset & Jeremy F. Wood

Starting in July, certain provisions of the Cannabis Employee Job Retention Ordinance will apply when a cannabis business undergoes a “change of control.” Seattle is not only a hotbed for the cannabis industry but also for cannabis industry employmen...

DISCRIMINATION—DISABILITY—E.D. Pa.: Police officer fired for serial misconduct, not for requesting psoriasis accommodation
February 6, 2023
Kathleen Kapusta, J.D.

Although a model patrol officer during the early part of his career, the later years were characterized by serial misconduct and disciplinary action. Citing the extensive misconduct set forth in a patrol officer’s termination letter, a federal court ...

DISCRIMINATION—RACE—D. Colo.: White corrections employee failed to state Title VII HWE claim over mandatory EDI training
February 6, 2023
Pamela Wolf, J.D.

Statements made in the training and their mandatory, recurring nature purportedly indicated the workplace was “permeated with discrimination, ridicule, and insult,” according to the employee, but sufficient supporting factual allegations were absent....

PROCEDURE—4th Cir.: Employee’s action commenced when complaint was delivered to court clerk, not when filing fee was paid
February 6, 2023
Todd Harrison, J.D.

“[T]he obligation to pay the filing fee is properly understood as a condition subsequent, not precedent, to instituting a civil action.” An employee who brought a pro se discrimination suit against his former employer and a staffing agency had his cl...

PROCEDURE—E.D.N.Y.: Retail employees alleging ‘no-hire’ agreement were timed out or needed market wide effect
February 6, 2023
Justin Marcus Smith, J.D.

The court noted that there had been significant developments in the jurisprudence regarding “no-poach” and “no-hire” agreements during the pendency of the instant motion to dismiss, so it gave the one timely employee a chance to amend. A group of lux...

PUBLIC EMPLOYEES—7th Cir.: Village’s property interest concession doomed due process defense against fired police chief
February 6, 2023
Jason Albright, J.D.

The village had previously conceded on appeal that the police chief, fired without notice or a pre-termination hearing, had a property interest in his job. A discharged police chief of the Village of University Park, Illinois, whose protected propert...

RETALIATION—D.S.C.: Employee fired for falling asleep on job, after return from maternity leave, fails to advance suit
February 6, 2023
Brandi O. Brown, J.D.

The new mother was fired two months after she returned from leave and six months after she complained to the EEOC of discrimination. A federal district court in South Carolina granted an assisted living facility’s motion for summary judgment in a ret...

STATE-LAW CLAIMS—W.D. Ark.: Paper mill workers terminated from ‘safety sensitive’ positions could not rely on medical marijuana patient status
February 6, 2023
Justin Marcus Smith, J.D.

There is a clear distinction between the employment protection offered to an individual’s status as a qualifying patient and an employer’s authority to prohibit marijuana use among its employees. Two pulp and paper mill employees who were medical mar...

AGENCY NEWS—Activision Blizzard agrees to pay $35 million to settle SEC charges
February 6, 2023
Suzanne Cosgrove

The video game company was charged with violating the Exchange Act’s disclosure controls and procedures, as well as its whistleblower protection rules. The SEC Commission found that Activision Blizzard executed separation agreements between 2016 and ...

EEOC NEWS—Commission sues Domino’s franchise for racial harassment of Black employees
February 6, 2023
Brandi O. Brown, J.D.

According to the Commission’s lawsuit, Black employees at a Domino’s franchise in New York were subjected to racial slurs, intimidation, and physical threats. According to a recent announcement by the EEOC, it has filed suit against Parris Pizza Comp...

WHITE HOUSE NEWS—Presidential memorandum supports access to leave for federal employees
February 6, 2023
Brandi O. Brown, J.D.

It highlights the need for access to leave without pay under certain circumstances for all employees, including those in the first year of service, as well as “safe leave” for employees impacted by domestic violence and similar circumstances. Preside...

Labor & Employment Law

PRIVACY—Ill. Sup. Ct.: Five-year limitations period controls claims under Illinois Biometric Information Privacy Act

The Act was enacted to help regulate “the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” The five-year catchall limitations period of Section 13-205 of the Illinois Code of Civi...

PRIVACY—Ill. Sup. Ct.: Five-year limitations period controls claims under Illinois Biometric Information Privacy Act
Law Firms Mentioned:Ankura Consulting Group LLC | Bredhoff & Kaiser | Derek Smith Law Group | Gary T. Brown & Associates | Hinshaw & Culbertson | IAM | Law Office of Michael G. O’Neill | Mintz | Perkins Coie | Radtke Law Office | Rubino Ruman Crosmer & Polen | Stephan Zouras LLP
Organizations Mentioned:1199 SEIU National Benefit Fund and Benefit Fund Staff Association | Black Horse Carriers, Inc. | Grandview Landscaping Inc. | Indiana Family and Social Services Administration | International Association of Machinists and Aerospace Workers (IAM), District Lodge 1888 | Maya Mexican Restaurant | Maya Restaurant Inc. | Nissan North America, Inc. | Premier Events & Banquets Inc. | Senior Healthcare Advisors LLC | Supermercado Carrera | Syl’s Restaurant and Lounge | Westchester County
EXPERT INSIGHTS—Final Regulations Issued by Massachusetts Department Of Family and Medical Leave—Health Maintenance During Leave
February 3, 2023
Patricia Moran

The employer may continue to pay its portion of a group insurance plan premium, with the employee remitting the employee’s portion in accordance with the employer’s uniformly-applied policies or practices. On January 6, 2023, the Massachusetts Depart...

EXPERT INSIGHTS—Workforce Retention: When Pay is not Enough
February 3, 2023
John Frehse

High-paying companies often have poor cultures where employees are treated terribly because they cannot measure up to the performance expectations matching the pay. In a world where the labor participation shortage is genuine and not going away, manu...

DISCRIMINATION—DISABILITY—D.D.C.: EEOC attorney, on remand, gets trial on Rehab Act interference, Title VII hostile environment claims
February 3, 2023
Kathleen Kapusta, J.D.

The attorney claimed she was subjected to "a multi-year pattern of harassment and hostility" from the agency because she filed multiple complaints and grievances. On remand from the D.C. Circuit, which had revived an EEOC legal advisor’s claims again...

DISCRIMINATION—DISABILITY—S.D.N.Y.: Employee who didn’t seek treatment for foot injury until after his firing won’t get trial on ADA claims
February 3, 2023
Marjorie Johnson, J.D.

The doctor’s report stating the employee had a “permanent impairment” was prepared more than one year after his termination and was devoid of any medical evidence concerning his disability during his employment. A probationary employee who was discha...

DISCRIMINATION—SEX—N.D. Ind.: Female supervisor’s repeated graphic remarks to male employee about bathroom use could create HWE
February 3, 2023
Marjorie Johnson, J.D.

A jury could also find the conduct was sufficiently severe or pervasive since the alleged remarks were frequent—ever day, sometimes multiple times a day, for six month—and made by his immediate supervisor. A state social services agency will face tri...

LABOR—E.D. Wis.: Veteran’s breach of settlement complaint against Postmaster General plausible despite remedy exhaustion question
February 3, 2023
Justin Marcus Smith, J.D.

The problem with the employer’s motion to dismiss was that nothing in the pleadings showed that the veteran postal worker’s complaint was subject to exhaustion of CBA dispute resolution procedures. A federal district court in Wisconsin declined to di...

LABOR—ORGANIZING, ELECTIONS—NLRB: Tool and die technicians at Nissan plant constituted an appropriate craft unit
February 3, 2023
Ronald Miller, J.D.

A craft unit consists of a distinct and homogeneous group of skilled journeymen craftsmen, who are primarily engaged in the performance of tasks that are not performed by other employees, and that require the use of substantial craft skills and speci...

LABOR—UNIONS, UNION MEMBERS—E.D.N.Y.: Employee’s hybrid claim against former union and former employer dismissed
February 3, 2023
Todd Harrison, J.D.

Although the union’s executive board overruled the grievance committee’s recommendation to send the employee’s claim to arbitration, doing so did not breach its duty of fair representation. A former employee of the 1199 SEIU National Benefit Fund and...

WORTH NOTING—Cases of note dealing with age discrimination
February 3, 2023
WK Editorial Staff

A roundup of recent age discrimination decisions of interest to the labor and employment community. Cal. App.: Group counselor failed to prove associational discrimination, retaliation. A part-time group counselor with a county’s probation department...

BENEFITS NEWS—Labor Department’s ESG rule faces challenges on multiple fronts
February 3, 2023
Brandi O. Brown, J.D.

GOP legislators announced plans to introduce a (barely) bipartisan disapproval resolution this week in the Senate, alongside a companion bill in the House, and last week 25 states filed a federal lawsuit seeking to ban the DOL rule. As previously rep...

DOL NEWS—WHD recovers $957K in back wages and liquidated damages for 149 workers
February 3, 2023
Nicole L. Chaney, J.D.

The allegations also include child labor, H-2B worker program, and FMLA violations. The U.S. Department of Labor’s (“DOL’s”) Wage and Hour Division (“WHD”) has separately announced awards totaling combined monetary recovery amounts of $957,706 in bac...

LITIGATION NEWS, TRENDS—Stockholder sues WWE in state court to compel inspection of books and records
February 3, 2023
Brandi O. Brown, J.D.

If successful, he alleges, he will continue the efforts of removed independent directors to investigate allegations that the Company’s Chairman, Vince McMahon, paid “hush money” to purported victims of his sexual misdeeds and potentially breached his...

Labor & Employment Law

USERRA, VETERANS—9th Cir.: Court must reconsider commercial pilots’ alleged entitlement to comparable short-term military leaves

USERRA § 4316(b)(1) requires employers to provide employees who take military leave with the same non-seniority rights and benefits as their colleagues who take comparable non-military leaves. Two airlines were not entitled to summary judgment in a p...

USERRA, VETERANS—9th Cir.: Court must reconsider commercial pilots’ alleged entitlement to comparable short-term military leaves
Law Firms Mentioned:Aronberg Goldgehn Davis & Garmisa | Barton & Downes, LLP | Brody Hardoon Perkins & Kesten | Cohen Milstein Sellers & Toll | Corr Cronin, LLP | Crowell & Moring | Delaney & Delaney | Dessin Law Office | Immigration Reform Law Institute | Jackson Lewis | Littler Mendelson | O'Hara, Taylor, Sloan and Cassidy | Ogletree, Deakins, Nash, Smoak & Stewart | Organ Law | Rosen Bien Galvan & Grunfeld
Organizations Mentioned:Alaska Airlines, Inc. | Ascension Health Alliance, Inc. | Checkers Drive-In Restaurants Inc. | City of Somerville, Massachusetts | Horizon Air Industries, Inc. | The Salvation Army | Washington Alliance of Technology Workers
STRATEGIC PERSPECTIVES—Jackson Lewis attorneys take a look back at significant class action developments in 2022
February 2, 2023
Marjorie Johnson, J.D.

Jackson Lewis attorneys in the firm’s Class Actions and Complex Litigation Practice Group also look ahead at potential new challenges in store for employers in 2023. In the latest issue of the Jackson Lewis Class Action Trends Report , attorneys in t...

EXPERT INSIGHTS—California Civil Rights Division Releases Updated Guidance for 2022 Pay Data Reporting
February 2, 2023
Christopher Olmsted & James A. Patton

California’s pay data reporting requires private employers with one hundred or more employees to file annual pay data reports with the Civil Rights Division. The California Civil Rights Division (CRD) recently released updated guidance in the form of...

EXPERT INSIGHTS—Wage and Hour Update: Federal Appeals Court Introduces ‘Relational Analysis’ Test for FLSA Administrative Exemption
February 2, 2023
Joshua D. Nadreaum

The First Circuit’s decision in Unitil Serv. Corp. adds some much-needed judicial gloss to the realm of hyper-technical overtime exemptions under the FLSA. Employers operating in certain states should note that the 1st U.S. Circuit Court of Appeals j...

DISCRIMINATION—RACE—1st Cir.: Lack of appropriate comparators dooms claims of officer fired for punching citizen, lying
February 2, 2023
Kathleen Kapusta, J.D.

It was, said the court, “the combustible mixture of unrestrained aggression and unmitigated mendacity that separated this case” from the officer’s proffered comparators. Affirming summary judgment against the state-law race discrimination claim of a ...

DISCRIMINATION—S.D. Ind.: Former business advisor, passed over for promotion, fails to advance age discrimination, retaliation claims
February 2, 2023
Todd Harrison, J.D.

After interviewing for a partnership position, she was not selected purportedly due to a poor interview, not because of her age or her past conflicts with a coworker. A federal district court in Indiana granted Ascension Health Alliance’s motion for ...

DISCRIMINATION—SEX—S.D. Ohio: Employee could not overcome employer’s evidence of honest belief in handbook reasons for termination
February 2, 2023
Justin Marcus Smith, J.D.

The court said the employee could not establish pretext where evidence supported that the employer honestly believed its stated reasons for termination, and therefore, the employee’s claims collapsed. Granting summary judgment against a fast-food emp...

EMPLOYEE STATUS—N.D. Ill.: Participants in Salvation Army’s rehabilitation program advance minimum wage dispute to discovery
February 2, 2023
Marjorie Johnson, J.D.

The nominally paid participants claimed they were not provided any training that would promote future employment, and that the requirement that they work at least 40 hours per week left little time for rehabilitation. Three participants in Salvation ...

IMMIGRATION—D.C. Cir.: Rehearing en banc denied on DHS regulation that allows F-1 student visa holders to remain in country
February 2, 2023
Ronald Miller, J.D.

Federal executive agencies have long used their statutory authority over the “time” of nonimmigrant admission to set the length of F-1 visa-holders’ permitted presence in the United States and the “conditions” they must meet while here. A divided D.C...

WORTH NOTING—Cases of note from the National Labor Relations Board
February 2, 2023
WK Editorial Staff

A roundup of recent NLRB decisions of interest to the labor and employment community. Employer required to bargain the effects of changing start time for salaried employees. An employer violated Section 8(a)(5) and (1) of the NLRA when it failed to b...

IMMIGRATION NEWS—Business owner pleads guilty to conspiracy involving labor trafficking
February 2, 2023
Brandi O. Brown, J.D.

Other offenses he committed included benefiting from forced labor and harboring undocumented non-citizens. A Virginia man pleaded guilty to conspiring to defraud and commit offenses against the United States, including human trafficking of individual...

IMMIGRATION NEWS—Cap reached for additional returning worker H-2B visas
February 2, 2023
Brandi O. Brown, J.D.

However, H-2B petitions for workers filing under the Haiti, El Salvador, Guatemala, and Honduras allotment, as well as those who are exempt from the congressionally mandated cap, continue to be accepted. The U.S. Citizenship and Immigration Services ...

REPORTS—CCHT implemented victim-centered approach to human trafficking policies, programs
February 2, 2023
Patricia K. Ruiz, J.D.

The CCHT annual report highlights investigations, arrests, and prosecutions, as well as achievements in aiding victims and providing immigration support. The second Center for Countering Human Trafficking (CCHT) Annual Report released by the Departme...