The Seventh Circuit significantly narrowed the EEOC’s broad interpretation of the American with Disabilities Act (ADA) last month. The court held that the ADA does not cover discrimination based on a future impairment.

The Seventh Circuit determined that the “regarded as having” prong of the ADA does not extend to applicants who are rejected due to an employer’s concerns about future disabilities. Shell v. Burlington N. Santa Fe Ry Co. The Seventh Circuit joins the Eighth, Ninth, Tenth, and Eleventh Circuits in holding that the present tense “having” in the ADA does not include the future tense “will have.” The facts here involved an obese applicant, and not an applicant with an existing predisposition, so its practical impact may be narrower than at first blush.


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The D.C. Circuit Court of Appeals decision in First Student Inc. v. NLRB suggests the judicially-created “perfectly clear” successorship standard to determine whether a company inherited its predecessor’s bargaining agreement is ripe for a challenge.

A divided panel concluded that under the National Labor Relations Act, the “perfectly clear” successor standard applied to a successor

Despite the hubbub, a new California law purportedly banning mandatory employment arbitration agreements does not completely change the game, and federal law still allows employers to use such agreements.

On October 10, 2019, Governor Newsom signed AB 51 (to be codified as Cal. Lab. Code § 432.6(c)). The new law on its face prohibits employers from requiring California employees to arbitrate certain employment disputes, even if the employees are given the option of opting out of arbitration. More ominously, AB 51 criminalizes retaliation against employees who refuse arbitration, among other remedies.


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Companies can be more confident that liability under the National Labor Relations Act will not flow from the misclassification of its workforce alone, thanks to a recent NLRB decision. Baker McKenzie attorneys call this welcome news for companies, but say they still must look at workforce relationships and properly classify independent contractors.

In a much

Companies with operations in California can exhale slightly, with the Ninth Circuit Court of Appeal and another California appellate court recently concluding, separately, that the rigid “ABC Test” established in Dynamex v. The Superior Court of Los Angeles County does not apply in the joint employer context.

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Ten years from now there may well be no more Employee Retirement Income Security Act (ERISA) class actions. The law, like the rest of life, is not immune from disruptive innovations. In our own lifetime, we have seen disruptive innovations from chemical photography to digital photography, from personal computers to smart phones, and from snail

The bad news is that your company may still be recovering from trying to compile and organize all of the EEO-1 Component 2 pay data for submission by September 30, 2019. The good news, however, is that the EEOC has announced that it will no longer collect Component 2 pay data in the future. (Everyone can let out a collective sigh of relief now!) To the extent they haven’t already done so, companies are still required to submit Component 2 pay data for years 2017 and 2018 this year, but they will not be required to do so on an ongoing basis.

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In July, we reported that a three-judge panel for the Ninth Circuit withdrew its holding in Vazquez v. Jan-Pro Franchising Int’l that Dynamex Operations West, Inc. v. Superior Court—the landmark California Supreme Court decision that makes it harder for companies to rely on independent contractors—applies retroactively. Rather than answering the question of Dynamexs retroactivity, the Court stated its intent to file an order certifying that question.

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On September 24, 2019, the Department of Labor (finally) issued the final rule on the minimum salary threshold required for employees to qualify for the Fair Labor Standards Act’s “white-collar” exemptions.

The final rule:

  • Raises the new minimum salary threshold to $35,568 per year ($684 per week). The previous salary threshold, which had been in place since 2004, was $23,660 ($455 per week).
  • Raises the “highly compensated” employee salary threshold from $100,000 to $107,432 per year.
  • Allows employers to count certain non-discretionary bonuses, incentives, and commissions to satisfy up to 10% of an employee’s salary level.
  • Does not impact the job duties test.
  • Is estimated to make an additional 1.3 million more workers eligible for overtime.
  • Will take effect quickly — on January 1, 2020.


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