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.
Employers facing potential withdrawal liability when closing facilities or withdrawing from underfunded multiemployer pension plans received some welcome news last month. In a noteworthy decision, a federal district court rejected a commonly used formula to calculate withdrawal liability. In the decision in The New York Times Company v. Newspaper and Mail Deliverers’-Publishers’ Pension Fund, et al., Nos. 17-CV-6178-RWS, 17-CV-6290-RWS (S.D.N.Y. Mar. 26, 2018), the court held that use of the so-called Segal Blend method of valuing a plan’s unfunded vested benefits to calculate withdrawal liability was a “mistake” and without statutory support under ERISA.
Attorneys from the EEOC (Greg Gochanour, Regional Attorney for Chicago Office) and the NLRB (Paul Hitterman, Regional Attorney for Region 13 of the NLRB) joined us in leading the discussion. Topics included disciplining employees for uncivil workplace behavior, the enforceability of confidentiality restrictions on witnesses during internal investigations and the NLRB’s newly issued test for reviewing employee work rules.
Here, we share a “top 10” list to highlight the principal takeaways from the program.
Embracing mediation as a way to avoid litigation is not a sure-fire solution as one employer recently learned. See Unite Here Local 30 v. Volume Services, Inc., No. 16-55528 (9th Cir. January 26, 2018). Mediation is often employed as an alternative method of dispute resolution for its perceived advantages over traditional lawsuits (e.g. it can be quicker, less expensive and less formal than a court-driven process). For these reasons and others, many labor unions and employers frequently choose mediation as an alternative to arbitration.
Manufacturers and retailers that have long relied on a complex web of contractors and subcontractors to supply necessary parts and materials may face a new risk. A recent decision limiting the effectiveness of a no-strike clause in a collective bargaining agreement may create an additional risk to that supply chain, if not to the employer’s own uninterrupted operations.
- Most CBAs contain some form of a no-strike clause. They are intended to protect against any interruption to production due to labor unrest during the term of the agreement.
- The Supreme Court has long deemed a strike in violation of a no-strike clause a breach of the collective agreement which a federal district court could enjoin.
- BUT — that assumption may no longer be wholly valid as demonstrated by a recent decision by a federal district court. Just Born, Inc. v. Local Union No. 6, Bakery Workers, 2017 BL 466136 (ED Pa. 2017).
On Wednesday, December 13, Barbara Gressel, Deputy Commissioner, Department of Business Affairs and Consumer Protection (BACP) provided the Chicago Bar Association’s Labor & Employment Committee with an informative presentation about the City of Chicago’s Paid Sick Leave Ordinance (in effect since July 1, 2017).
Ms. Gressel, who leads the Department’s compliance and enforcement efforts, reviewed the Ordinance’s accrual and carry over rules, as well as the provisions concerning usage caps. The remainder of her presentation involved how the Department will investigate charges, and the administrative process for formally enforcing the ordinance. Here are our takeaways:
Department Investigations Initiated by Employee Complaint
- Enforcement begins with the filing of a complaint by an employee. Employees may obtain a copy of a blank complaint by visiting the Department’s webpage. The charge must be filled out by hand, or on a typewriter. The complete complaint can be filed by facsimile (fax) or in person.
- The Department intends to investigate each facially valid complaint on a class-wide basis. It reasons that if one employee is not receiving proper payment, accrual, carryover etc., no employee is. The request for information will be by administrative subpoena.
- At least initially, the Department intends to attempt to resolve complaints informally. Employers who refuse to meet their obligations during this initial period will be prosecuted for a ordinance violation. Similarly, after the initial familiarization period (expected to last 18-24 months), the Department will use its formal ordinance enforcement process whenever it determines to allege a violation has occurred.
In October, we discussed one of the hottest trending class-action claims: the Illinois Biometric Privacy Act (BIPA). In our alert, we noted that it was not clear whether a plaintiff would need to show a concrete injury to be entitled to damages or whether a mere statutory violation would be sufficient to warrant damages.
On November 21, the Second Circuit Court of Appeals issued a decision on this very issue.
Watch Doug’s 6-minute video outlining the threat of withdrawal liability
and the steps employers can take to mitigate this risk.
Attention employers using biometric identification technology, such as retina scans, fingerprint identification and facial recognition technology:
A number of corporations in Illinois, including internet and video game companies, food product manufacturers, gas stations, and restaurant chains, have been sued in the past few months for alleged BIPA violations.