In last Thursday’s Vazquez v. Jan-Pro Franchising, the Ninth Circuit made several impactful findings related to the infamous Dynamex decision:

  1. Aligning with several state court decisions supporting retroactivity, the Ninth Circuit ruled that Dynamex’s ABC test applies retroactively.
  2. It also applied Dynamex to a multi-level franchise structure, expanding the test beyond the independent contractor context.
  3. Last, the Court issued guidance to the district court on remand reaffirming the difficulty of “passing” the ABC test.

Continue Reading In Expansive Decision, Ninth Circuit Rules Dynamex Applies Retroactively

On April 10, the EEOC released its charge filing statistics for Fiscal Year 2018, which ran from October 1, 2017 to September 30, 2018. These annually disclosed statistics reveal continued trends in the employment litigation space and provide an opportunity for employers to ensure their policies and practices address issues arising in the ever-changing modern workplace.

Continue Reading EEOC FY 2018 Enforcement & Litigation Data Reveal Trends In Employment Litigation

Even as IPOs bloom this spring in the technology sector, there exists well publicized macro-economic uncertainty, stemming from Brexit concerns, among other developments. Real threats to free trade and investment flows remain, with the potential for a much more serious outbreak of protectionism and isolation on a global scale. A recession may or may not be looming, depending on the day and your media outlet.

In these uncertain times, the best counsel know to be prepared for everything, including business change. To successfully manage global business change, in-house counsel must identify potential legal roadblocks, plan ahead and provide a strategic approach. Counsel must be prepared for everything, including some tough decisions:

  • Cost-realignment such as furloughs, compensation reduction or benefit forfeitures;
  • Workforce reductions;
  • Reorganizations; and
  • Transfer relocation and seconding of employees.

Continue Reading Preparation Is Key To Effectively Managing Global Business Change

Less than two weeks ago we reported that all employers with 100 or more workers in the US would have until September 30 to provide the EEOC with pay data (read more here).

Then, just days later, on May 3rd, the Justice Department appealed the two rulings resurrecting the Obama-era mandate. Ironically, the appeal came just one day after EEOC Acting Chair Victoria Lipnic declared:

[W]e are committed to meeting the court’s order, working with employers, and making this happen by the end of September.”

Despite the appeal, in a court filing and on its website, the EEOC insists employers should still prepare to submit their 2017 and 2018 pay data to the EEOC by September 30.

Accordingly, we continue to recommend, per our earlier alert, that employers prepare their revised EEO-1 form to meet the September deadline.

Only one thing is certain: Nothing is certain. The global transactions market remained robust in 2018 and still into 2019, despite well publicized macro-economic uncertainty, stemming from Brexit concerns, among other developments. Real threats to free trade and investment flows remain, with the potential for a much more serious outbreak of protectionism and isolation on a global scale. A recession may or may not be looming, depending on the day of the week and your news source.

So, as in-house employment counsel managing an international workforce, what can you do to best position your company to thrive in uncertain times? The short answer: Be prepared … for anything and everything.

To get you started, read this article. Our team of authors outline approaches, tips and preparation pointers to help effectuate some of the most common types of actions that in-house employment counsel are likely to face in the near future.

And for help managing business change, reach out to your Baker McKenzie employment lawyer.

All employers with 100 or more workers in the US have until September 30 to provide the EEOC with pay data as part of the annual workforce data report known as the EEO-1.

On April 25, US District Judge Tanya Chutkan accepted the EEOC’s proposal (more here) to make employers submit their 2018 pay data this fall. She also ordered the EEOC to collect a second year of pay data, giving it a choice between collecting employers’ 2017 data or making it collect 2019 data down the road. Her ruling is expected to impact more than 60,000 employers.

Continue Reading US Employers Must Submit Revised EEO-1 Forms With Pay Data By September 30, 2019

Last Wednesday, the US Supreme Court issued yet another pro-employer arbitration decision.

In a 5-4 split, the Supreme Court held in Lamps Plus Inc. v. Varela that a party cannot be compelled to submit to a class arbitration (as opposed to the arbitration of individual claims) unless the arbitration agreement explicitly authorizes class proceedings in arbitration.

In doing so, the Supreme Court reiterated two key aspects of its Federal Arbitration Act jurisprudence:

  1. Arbitration is a matter of consent, not coercion; and
  2. Class arbitration is fundamentally different than the traditional individualized arbitration envisioned by the FAA.

Because, according to the majority opinion, class arbitration so fundamentally changes the nature of arbitration, a party can only be forced to litigate class claims in arbitration under the FAA if there is a contractual basis for concluding that the party agreed.

Continue Reading US Supreme Court Turns Off The Lights On Coerced Class Arbitration

With IPOs blooming in Silicon Valley this spring, it’s hard to imagine the possibility of an economic downturn in the near future.

And yet, the best counsel will always be prepared for everything, including business change. Accordingly, we’ve designed this seminar for in-house employment counsel managing an international workforce and wondering how they can best position their companies to thrive in uncertain times.

During these one-hour sessions, our attorneys from employment, corporate and litigation will discuss what multinational HR departments and in-house legal departments can focus on in the near future. We will share how to prepare for and react to market changes, through cost realignment strategies, reductions in force, and reorganizations. The program will identify key legal considerations both in and outside the US, so companies operating in multiple jurisdictions can proactively implement litigation mitigation strategies and stay ahead of the curve.

Click here to view more details on the program and to register to attend.

Originally published in Benefits Law Journal.

Champagne and a steak dinner have traditionally marked celebrations at the close of a corporate deal. Celebrations these days are being marred by a party pooper—Employee Retirement Income Security Act (ERISA) pension plan successor liability.

Increasingly, courts are delivering a “pay up now” notice to the buyer of financially challenged companies with underfunded pension plans through the use of innovative judicial remedies. On September 4, 2018, the Sixth Circuit Court of Appeals joined the Seventh and the Eighth Circuits in adopting a federal common law “categorical test” to impose withdrawal liability on a successor employer to a single employer pension plan.

Click here to read the full article.