Join us for our Annual California Employer Update on January 8 in Palo Alto and January 9 in San Francisco.We’ll clarify the impact of employment and compensation developments in California, the US and abroad that raise opportunities for the visionary companies that seize them.
We will take a closer look at key developments through
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.Continue Reading From The Seventh Circuit: Future Disabilities Not Protected Under The ADA
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.Continue Reading Slow Your Roll: Federal Law Preempts California’s Latest Assault On Employment Arbitration Agreements
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.
Continue Reading Courts Confirm Martinez – Not Dynamex – Applies To Joint Employer Claims In California
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 Dynamex‘s retroactivity, the Court stated its intent to file an order certifying that question.
Continue Reading The Ninth Circuit Asks The California Supreme Court If Dynamex Applies Retroactively
This summer the U.S. Women’s Soccer team won more than the World Cup – they’ve had tremendous success in garnering public support in their bid for equal pay. However, beyond the star power of Alex Morgan and Megan Rapinoe, pay equity continues to be a hot button issue for employers in the U.S.
We’re pleased
Today California Governor Gavin Newsom signed a landmark bill making it more difficult for companies to engage independent contractors. (See our previous coverage HERE.) Assembly Bill 5 “will help reduce worker misclassification — workers being wrongly classified as ‘independent contractors’ rather than employees, which erodes basic worker protections like the minimum wage, paid sick days and health insurance benefits,” Newsom wrote in a statement.
Continue Reading The Controversial ABC Test From Dynamex Is Codified In Law — California’s Gig Economy Braces For Change
This week, the National Labor Relations Board finally came to its senses and adopted the contract coverage test for cases alleging an employer had unlawfully, unilaterally changed employees’ terms and conditions of employment. MV Transportation, Inc. 368 NLRB No. 66 (2019). This week’s decision is likely to change the forum unions select for the enforcement of their labor agreements. Ironically, the decision may compel employers to consider additional bargaining rather than litigation before an arbitrator given there is little opportunity to appeal an adverse arbitration award.
Continue Reading The NLRB Acknowledges The Inevitable And Adopts The Contract Coverage Test
As previously detailed here, the U.S. Supreme Court’s 2018 Epic Systems decision established that requiring employees to waive their right to pursue collective or class actions does not violate the National Labor Relations Act’s “catchall” protection—the right to engage in “concerted activity”—and courts must enforce arbitration agreements as written.
The Supreme Court not only confirmed the legality of class action waivers under the Federal Arbitration Act, but it also narrowly construed the NLRA’s catchall provision as focused on the right to organize unions and bargain collectively in the workplace.
The Court’s holding that the right to engage in such “concerted activities” does not guarantee collective or class action procedures underpins a recent NLRB decision concerning issues of first impression: imposing and requiring as a condition for continued employment a new class action waiver rule in response to collective action.Continue Reading Applying Epic Systems, The NLRB Adopts Employer-Friendly Arbitration Stance
