On February 8, 2024, the U.S. Supreme Court issued a unanimous opinion holding that a whistleblower with a retaliation claim under the Sarbanes-Oxley Act of 2002 (“SOX”) does not need to establish that their employer acted with “retaliatory intent” to succeed on their claim. An employee must merely show that their protected whistleblowing activity was a “contributing factor” in an adverse employment action against them by their employer. Murray v. UBS Securities, LLC, 144 S.Ct. 445 (2024). An employer’s retaliatory intent or lack of animosity is “irrelevant.” Id. at 446.
Continue Reading SCOTUS Holding Reinforces Employee-Friendly SOX Whistleblower Burden

The legal path between employee arbitration agreements under the Federal Arbitration Act (“FAA”) and representative claims under the California Private Attorney General Act (“PAGA”) has been anything but smooth. A new (albeit unpublished and uncitable) case, Piran v. Yamaha Motor Corp., et al., No. G062198, 2024 WL 484845 (Cal. Ct. App. Feb. 8, 2024)(unpub.) (“Yamaha”), helps to illustrate the challenges and unanswered questions lingering in the wake of this rapidly-developing area of law.
Continue Reading In High Stakes Battle Between Arbitration and PAGA, Wins, Losses, and Questions

Washington, D.C. is the latest in a growing list of jurisdictions to require employers to have “pay transparency” in job postings. Starting in June of 2024, Washington, D.C. will require all employers with at least one employee in the District to post the minimum and maximum projected salary in all job listings or advertisements. The salary projections must be the lowest and highest salary or hourly pay the employer “in good faith believes” it would pay for the role.
Continue Reading D.C. to Require Pay Transparency, Prohibit Inquiry into Wage History

In the wake of the #MeToo movement, New York, like other states, enacted legislation aimed at limiting employers’ use of non-disclosure provisions in settlement agreements to resolve claims of workplace discrimination. Recently, Governor Kathy Hochul signed legislation that amends those existing laws to further strengthen the restrictions on non-disclosure provisions in settlement agreements for discrimination, harassment, and retaliation claims. The legislation also extends the statute of limitations for filing such claims with the state enforcement agency.
Continue Reading New York Enacts (More) New Restrictions on Settlement Agreements, Extends Statute of Limitations for Employment Claims

The Texas Supreme Court has issued an opinion holding that “third-party testing entities hired by an employer do not owe a common-law negligence duty to their clients’ employees.” Houston Area Safety Council, Inc. v. Mendez, 671 S.W.3d 580, 590 (Tex. 2023) (“Mendez”). In a positive development for employers that drug test their employees, the Mendez opinion also supports prior Texas Supreme Court precedent that employers who conduct in-house drug testing do not owe a duty to employees. Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003) (“Solomon”). In other words, it logically follows that if an employer does not owe a duty to employees for results of drug tests administered in-house, a third-party tester hired by that employer does not owe a legal duty to employees for drug tests.
Continue Reading Third-Party Drug-Testers—Not Just Employers—Owe no Duty to Employees

On September 29, 2023, the U.S. Supreme Court granted certiorari in Bissonnette v. LePage Bakeries Park St. LLC, a case from the Second Circuit Court of Appeals involving application of the Federal Arbitration Act’s (“FAA”) exemption for transportation workers.
Continue Reading The Supreme Court To Further Clarify “Transportation Worker” Exemption to the FAA

On August 29, 2023, the California Court of Appeal issued a new opinion that, once again, changes how parties litigate and settle claims brought under California’s Private Attorneys’ General Act (“PAGA”). See Robert Lacour v. Marshalls of California, LLC, et al., 94 Cal.App.5th 1172, 313 Cal.Rptr.3d 77.
Continue Reading California Court of Appeal Reminds Parties that a Plaintiff’s Pre-Litigation Notice to the LWDA Controls the Scope of PAGA Settlements

A recent opinion out of the Texas 14th Court of Appeals has raised the bar for employers trying to enforce arbitration agreements electronically signed by employees. See Houston ANUSA, LLC d/b/a AutoNation USA Houston v. Shattenkirk, No. 14-20-00446-CV, 2023 WL 5437714 (Tex. App.—Houston [14th Dist.] Aug. 24, 2023, no pet. h.).
Continue Reading Employee E-Signatures in Arbitration Agreements Under Scrutiny

On June 14, 2023, Texas Governor Greg Abbott signed HB 2127, the Texas Regulatory Consistency Act (“TRCA”), into law. Once the TRCA goes into effect on September 1, 2023, it will preclude all municipalities and counties in Texas from adopting or enforcing ordinances regulating conduct with respect to certain subject matters, including labor.
Continue Reading Texas Legislation Provides Employers Regulatory Uniformity

California employers: take notice. On July 24, 2023, the Office of Administrative Law approved changes to the Fair Employment and Housing Act (FEHA) regulations governing how California employers can use and consider criminal history in employment decisions. These new changes, modifying Cal. Code Regs. Tit. 2, § 11017.1, go into effect on October 1, 2023.
Continue Reading California Employers: Updated Regulations for Use of Criminal History in Hiring Decisions Go into Effect October 1, 2023