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.
After the Eleventh Circuit’s holding in Asalde v. First Class Parking Systems LLC 894 F.3d 1248 (11th Cir. 2018), more small employers may be subject to the requirements of the FLSA. By expanding the “handling clause,” the case chips away at the degree of interstate commerce necessary for the FLSA to apply.
Andrea Mickles filed a complaint against her employer Country Club Inc., alleging it had violated the Fair Labor Standards Act (FLSA) by improperly classifying her and other employees as independent contractors and failing to pay them minimum wage and overtime. She filed her case as a collective action, and others opted into the case before any ruling on conditional certification. Those opt-ins eventually provided the Eleventh Circuit with an opportunity to address an issue of first impression in any Circuit: What is the status of individuals who opt into a case that is never conditionally certified? Continue Reading Who’s Invited to the Party?: The Status of Collective Action Opt-Ins
On March 26, 2018, the Supreme Court heard oral argument in Resh v. China Agritech, Inc., a case that could have far-reaching implications in the class action context. Resh addresses the interplay of successive class actions and the statute of limitations, specifically, whether a plaintiff can pursue a class action after the statute of limitations has run. Although the issue arose in a securities case, the Court’s ruling will affect class actions and time bars in all areas, including employment.
The issue of whether workers are properly classified as independent contractors rather than employees is a common dispute in the gig economy, particularly in newer, technology-based industries, such as ride-sharing.
That issue just became a much simpler one in Florida: On May 9, 2017, Florida’s governor signed into law a bill that, among other things, establishes that drivers for companies such as Lyft and Uber—called “transportation network companies” or “TNCs” under the law—are independent contractors, not employees, as long as the company satisfies four conditions:
On January 31, 2017, President Trump nominated Neil Gorsuch to fill the nearly year-long vacancy on the Supreme Court left by Justice Scalia. Judge Gorsuch, currently on the Tenth Circuit Court of Appeal, is likely a welcome choice for employers. His employment decisions generally—though not always—have favorable outcomes for employers. However, he does not appear to be a trailblazer on employment issues, but rather applies established precedent that generally favors employers. His employment decisions do not tend to draw dissent, bolstering the view that his opinions are not significant departures from Tenth Circuit and Supreme Court precedent. (Of course, not all agree. Senator Elizabeth Warren describes him as having “twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct. He has ruled against workers in all manner of discrimination cases.”)
With Christmas falling on a Sunday this year, employers should be mindful of state blue laws, which sometimes require premium pay to hourly employees working on Sundays or holidays. Although most state laws, as well as federal law, do not require premium pay for work performed on holidays (unless, of course, the employee has worked more than 40 hours that week), there are a few exceptions, such as Massachusetts and Rhode Island.
In its recent decision in David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases. Continue Reading EEOC Rules Title VII Prohibits Sexual Orientation Discrimination