On January 25, 2019, the Illinois Supreme Court issued a highly anticipated decision, Rosenbach v. Six Flags Entertainment Corporate et al., extending the reach of the Illinois Biometric Information Privacy Act (BIPA). BIPA is an Illinois privacy law that regulates the collection, use, and retention of biometric data such as fingerprints, face, and eye scans by imposing procedural requirements on corporations that collect the data. Though not an employment case, the decision impacts employers using biometric time-keeping systems in Illinois.
To paraphrase Pharaoh Ramses II, so it is written, so it shall be done.
In Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. __ (January 8, 2019), the first opinion by Justice Kavanaugh, a unanimous Supreme Court reiterated this principle of the Federal Arbitration Act. Specifically, the Court confirmed that when an arbitration agreement delegates to an arbitrator the question of whether the agreement applies to a particular dispute, courts have no power to decide this question, even if a court considers the arbitrability argument to be “wholly groundless.”
As we previously discussed here, the United States Supreme Court’s May 2018 decision in Epic Systems v. Lewis was a clear win for employers that seek to avoid the expense and disruption of class litigation by resolving disputes individually through binding arbitration. As explained by the Supreme Court in AT&T Mobility LLC v. Concepcion, “[i]n bilateral arbitration, parties forego the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.”
For employers looking to take advantage of the benefits of individual arbitration, there are several drafting nuances to consider before rolling out or updating existing arbitration agreements.
In a welcome decision for franchisors, and first of its kind in the Second Circuit, the Southern District of New York ruled that Domino’s Pizza Franchising LLC, the franchisor (Domino’s), did not exert enough control over its franchisee to warrant joint employer status. This determination means Domino’s will not have to face claims brought under the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) by current and former employees of a Domino’s franchisee.
Click here to read more about the case, the decision and takeaways for employers.
Illinois employers will have a new headache this new year, because as of January 1, 2019, they must reimburse employees for all “necessary expenditures and losses” incurred within the scope of their employment. This August, the Illinois Wage Payment and Collection Act changed to specifically include an expense and loss reimbursement requirement.
With the modern workforce comes modern employment problems. Businesses and workers alike have embraced the “gig economy,” but employment laws were not designed for workforces dominated by independent contractors and freelancers. This disconnect leaves gig economy businesses open to significant liability where such workers should have been classified as employees under the law.
Last month the California Supreme Court ruled in favor of a class of 1,400 student bus drivers who sued their employer for failing to comply with state background check laws. The Court’s decision is notable because it is part of a broader trend of states and cities making it more difficult for employers to use background checks. Under Connor v. First Student, Inc., employers in California must comply with overlapping statutes regulating investigative consumer reporting agencies.
Last week, in Troester v. Starbucks Corporation (Case No. S234969), the California Supreme Court weighed in for the first time on the viability of a de minimis defense to California wage and hour claims.
Many commentators have since rushed to declare that “de minimis” is dead. Not so.
On June 14, franchisors received good news when the US District Court in the Eastern District of Illinois ruled that Jimmy John’s Franchise, LLC is not a joint employer of its franchisees’ employees.
In 2014, former employees of various Jimmy John’s franchisees brought a collective action against their former franchisee employers and against Jimmy John’s Franchise, LLC. The former employees alleged they were misclassified as exempt under the FLSA and consequently denied overtime pay. They also claimed that Jimmy John’s, as an alleged joint employer, was jointly liable for their damages.
On summary judgment, the Court applied a modified version of the Seventh Circuit’s Moldenhauer test to determine joint employment. It stated that all of the factors reviewed boiled down to one essential question: whether
Jimmy John’s exercised control and authority over franchise employees in a manner that caused the FLSA violation (at least in part). And, the Court determined that the evidence demonstrated that the franchise owners determine how to classify and compensate franchise employees — not Jimmy John’s. As such, Jimmy John’s did not exercise control over the alleged FLSA violation and was not a joint employer.
Click here to read more on the decision and its impact on franchisors.