But Are They Right for Your Workforce?

The US Supreme Court issued a highly anticipated decision on May 21, 2018 in Epic Systems Corp. v. Lewis, holding that class action waivers in arbitration agreements are fully enforceable, notwithstanding the right to engage in concerted activity under the National Labor Relations Act.

Although employers now have a tool to effectively eliminate most employment class actions through the use of arbitration agreements, several other important nuances remain to be considered before rolling out an arbitration program.

Click here to learn more about the decision and what it means for your business.

Welcome news for employers: companies can require their workers go through arbitration to pursue any legal claims against their employers, rather than go to court or join together in class lawsuits or grievances, the US Supreme Court held today in a 5-4 vote.

Writing for the majority in three consolidated cases (Epic Systems Corp. v. Lewis, NLRB v.  Murphy Oil  USA, Inc., and Ernst & Young LLP v. Morris), Justice Neil Gorsuch said the Federal Arbitration Act sets a strong policy favoring the enforcement of arbitration agreements, and employees of the three companies failed to show they had any right to disregard the arbitration agreements they signed.

The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written. While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA — much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies.

The ruling means that companies can enforce their class action waiver agreements and their employees will have to pursue their claims in individual arbitration proceedings. Please stay tuned for more to come from us on the actions employers should take now in response to this important decision.

Employment law practitioners are keenly aware of the McDonnell Douglas burden-shifting analysis in single plaintiff disparate treatment cases. Under the analysis, plaintiff must demonstrate (1) status as a member of a protected class, (2) an adverse employment action and (3) a similarly situated person outside the protected class who was treated differently. In a recent decision, Hansen v. Rite Aid, No. A-4750-16T4 (N. J. Super. Ct. App. Div., May 2, 2018), the New Jersey Court of Appeals provided a reminder that it is plaintiff’s burden to prove the alleged comparators are indeed similarly situated.

Continue Reading Reminder That It’s Plaintiff’s Burden To Prove Comparators Are Similarly Situated In Disparate Treatment Cases

“The Dynamex Case: A New Threat to Franchising?” alerts franchisors to the California Supreme Court’s recent opinion in Dynamex Operations West Inc. v. The Superior Court of Los Angeles County.

Although not a franchise case, the decision cites two cases that used the ABC test to determine that franchisees were employees of a franchisor, not independent contractors. Assuming the Dynamex test is applied to franchising, it could have far-reaching consequences for our franchise clients with operations in California.

Please click here to read more. Thanks to Ann Hurwitz and Emily Harbison for preparing this alert.

Happy Mother’s Day! 

May 13 is Mother’s Day in the US, Australia and Canada. As such, it feels apropos to recognize the latest initiatives in the US and around the world aimed at increasing opportunities at work for working mothers (and caregivers more generally). Government-mandated maternity, paternity and parental leave and benefits, as well as robust childcare and eldercare infrastructure are among the most effective public policy investments for promoting gender parity in the workforce. As employers strive to retain working parents and increase female representation in corporate leadership roles, this article highlights how parental leave rights and related benefits are changing to reduce the burden of work-family conflicts on women and encourage men (and even grandparents!) to avail themselves of paternity leave and/or parental leave.

While the intended effects of new legislation in this area are of course positive, it can be challenging for US and multinational employers to navigate the patchwork of statutory requirements that offer varying entitlements based on differing circumstances. Even beyond managing simple compliance, many multinational employers also feel the pressure to stay competitive in the war for talent and to create human resources policies that can be managed centrally in a streamlined fashion, while also locally compliant in jurisdictions outside of the US.

Please click HERE to read our article. We focus on recent entitlements and related benefits made available to employees who manage caregiving responsibilities outside of work and share the updates multinationals need to know.

For more details, please contact your Baker McKenzie lawyer.

  With all the discussion around California’s salary history ban, it’s easy to forget that some cities have adopted their own regulations. For companies with operations in San Francisco, it is important to be aware of the city’s salary history ordinance.

Here’s what you need to know:

Continue Reading Quick Reminder Regarding San Francisco’s Salary History Ban (Effective July 1, 2018)

On April 30, the California Supreme Court issued an opinion radically changing the legal landscape for any company engaging independent contractors in California. Dynamex Operations West Inc. v. The Superior Court of Los Angeles County changes the legal test for determining whether workers should be classified as employees or as independent contractors under California’s wage orders. The Court scrapped the multifactor, flexible test (known as “Borello”) that has been used in California for decades. It adopted the “ABC” test, a standard that has its roots in determination of unemployment tax status in other states and presumes workers are employees instead of independent contractors.

This extraordinary decision will have far-reaching consequences for California companies reliant on independent contractors and likely spur a landslide of litigation for years to come. As such, we are recommending that companies engaging independent contractors in California, in any industry, work with counsel to revisit classification decisions and undertake a cost/benefit analysis of reclassifying workers in the near term.

For more, please read our alert HERE.

As efforts to narrow the gender pay gap intensify across the globe, we launch the first article in our new series. Click the photo below to read the article, which provides an overview of the international picture.

The International Response to the Gender Pay Gap

Stay tuned over the coming months for weekly insights highlighting what multinational employers need to know about the gender pay gap.

  Yesterday we hosted a dynamic panel featuring four of our favorite European colleagues for a breakfast briefing in Palo Alto. Susan Eandi moderated a lively discussion with Nadège Dallais (France), Bernhard Trappehl (Germany), Fermin Guardiola (Spain) and Nicola James (United Kingdom).

Our colleagues gave guests an inside look at sociopolitical trends driving employment law change in each of their respective countries, as well as sharing important updates related to practical issues employers are currently facing.

In case you missed it, here are a few of the headlines:

Continue Reading Takeaways From Our European Employment Law Breakfast Briefing