The U.S. District Court for the Northern District of California is a popular venue for class action lawsuits.  As of November 1, 2018, it is also the first to require parties settling such lawsuits to make broad public disclosures regarding the settlements.

Continue Reading California Federal Court First to Require Class Action Settlement Data To Be Made Public

The U.S. Supreme Court held yesterday that the Age Discrimination in Employment Act (ADEA) applies to state and local government employers, regardless of their size.  In doing so, the Court unanimously adopted the Ninth Circuit’s reading of the statute when four other Circuits held the opposing position.

Continue Reading Supreme Court Extends ADEA Coverage to Small State and Local Government Employers

In the wake of the #MeToo movement, many state legislatures have begun to take action to provide greater protections for victims of sexual harassment and make it easier for them to make complaints in the workplace.  For example, in California, AB 2770 amends Civil Code Section 47 to protect alleged victims of sexual harassment by a co-worker in making complaints to the employer without the fear of being found liable for defaming the alleged harasser.  It similarly protects employers when making statements to interested parties (such as the Department of Fair Employment and Housing and/or Equal Employment Opportunity Commission) concerning the complaints of sexual harassment.  In both instances, however, the statements and/or complaints are only protected from liability for defamation if they are made without malice and based upon credible evidence.

Continue Reading California’s AB 2770 Protects Employers and Victims of Sexual Harassment from Defamation Claims

In a new class action filed recently against a hospital housekeeping company, employees allege their employer’s fingerprint scanning time-tracking system runs afoul of privacy laws.  The Pennsylvania-based company Xanitos Inc. now faces the lawsuit in federal court in Illinois, claiming the company violated the state’s Biometric Information Privacy Act (BIPA).

Continue Reading Press Pause Before Using Biometric Tech in the Workplace

It’s now officially public: under the National Labor Relations Board’s (NLRB)  General Counsel Peter B. Robb, unions may face greater scrutiny and a higher burden in defending against claims that they violated the duty of fair representation.  Under the National Labor Relations Act, unions owe this duty to its members and can be liable under Section 8(b)(1)(A) if they represent them arbitrarily, discriminatorily, or in bad faith. Continue Reading New General Counsel Memorandum Reiterates The NLRB’s Policy of Increased Scrutiny of Unions

A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.

Continue Reading OSHA Clarifies Stance on Anti-Retaliation Measures to the Relief of Employers

The EEOC recently released a report highlighting the Commission’s efforts to combat sexual harassment in the past year.  The report, which includes preliminary data for the fiscal year ending on September 30, 2018, illustrates that the Commission has been, in the EEOC’s words, “vigorously enforcing the law” in the wake of the #MeToo movement.

Continue Reading EEOC Report Profiles Its “Vigorous” Efforts to Combat Workplace Harassment

The combination of a quirky procedural posture and broad language used by the Supreme Court in 1941 have left Home Depot trapped in a North Carolina state court defending against a class action, despite the removal provisions of the Class Action Fairness Act.  On September 27, 2018, the Supreme Court granted certiorari to decide whether CAFA authorizes removal of class action counterclaims when its requirements are otherwise met.

Continue Reading Supreme Court to Address CAFA Removal of Counterclaims

According to the National Human Trafficking Hotline, California has had the highest number of reported cases of human trafficking in the country over the last six years, followed by Texas and Florida.  Human trafficking victims include men and women, adults and children, and foreign nationals and United States citizens. Recent studies indicate that hotels and motels are common locations for sex trafficking.

In light of these startling statistics, now is a good time for employers to become informed about new legislation associated with human trafficking crimes and to implement or update their anti-human trafficking policies and practices. Continue Reading New California Legislation Imposes Human Trafficking Training Requirements on Hotel and Transit Employers

The NLRB’s Office of the General Counsel recently issued an internal directive regarding the manner in which NLRB Regions prosecute duty of fair representation charges against unions.  Under the National Labor Relations Act, unions have a duty of fair representation to the members of the bargaining unit it represents by engaging in conduct that is not arbitrary, discriminatory or in bad faith, particularly with regard to the processing of worker grievances.  Board law has established (and unions typically offer as a defense) that “mere negligence” alone does not amount to arbitrary conduct that would serve to breach the duty of fair representation.

Continue Reading NLRB General Counsel Elevates Standard for Unions’ Duty of Fair Representation