When a party receives an adverse order on a motion for class certification, whether the court of appeals grants permission to appeal under Rule 23(f) can be a crucial turning point in the case.  If the appellate court will not hear this interlocutory appeal, the only way to obtain review of that decision is to take the case through trial, to a final judgment.  But, due to the high stakes and large costs involved, few class actions are tried and cases often settle after the class certification order is issued by the trial court.

Continue Reading Appellate Court Provides Valuable Guidance for Interlocutory Appeals of Class Certification Orders Under Rule 23(f)

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.”)

Continue Reading Supreme Court Nominee Is Likely a Good Pick for Employers

On October 5, 2016, the Eleventh Circuit, sitting en banc, held that an unsuccessful job applicant “cannot sue an employer for disparate impact [under § 4(a)(2) of the ADEA] because [an] applicant has no ‘status as an employee.’”  Villarreal v. R.J. Reynolds Tobacco Co., — F.3d —, No. 15-10602, 2016 WL 5800001, at *1 (11th Cir. Oct. 5, 2016).

Continue Reading Eleventh Circuit: Job Applicants May Not Sue For Disparate Impact Under § 4(a)(2) Of The ADEA

Originally published by Construction Business Owner

By now, the employer community is well aware of the wide-ranging implications of Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (2015) (Browning-Ferris)—a decision that upended decades of National Labor Relations Board (NLRB) precedent and dramatically expanded the definition of “joint employer” under the National Labor Relations Act (NLRA). On August 16, 2016, in Retro Environmental, Inc./Green JobWorks, LLC , 364 N.L.R.B. No. 70, 2016 WL 4376615 (August 16, 2016) ( Retro), the NLRB applied the full weight of Browning-Ferris and concluded that Retro Environmental and Green JobWorks are “joint employers” under the NLRA. The NLRB also made it more difficult for employers to prove that they have ceased their joint-employer relationship. Retro is the latest in a line of NLRB decisions, issued since Browning-Ferris, which emphasize the need for employers to scrutinize their third-party business relationships for joint-employer risk.

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In a decision that could trigger similar action in multiple states, the Fifth Circuit recently decided that an employee could bring a wrongful-termination claim in Mississippi after being terminated for having a gun in his truck, which was parked on company property.   Following the Mississippi Supreme Court’s decision on referral, the Fifth Circuit held that a Mississippi statute—which prohibits employers from establishing, maintaining, or enforcing policies that prohibit an employees from storing a firearm in a vehicle on company property and from taking action against an employee who violates that policy—creates an exception to the state’s employment-at-will doctrine.

Continue Reading Employer Prohibited from Terminating Employee for Storing Gun in Truck in Mississippi – Multiple States Potentially Impacted

In Bodine v. Cook’s Pest Control Inc., No. 15-13233, 2016 WL 4056031 (11th Cir. July 29, 2016), the Eleventh Circuit held that a forced-arbitration agreement in an employment contract is enforceable, despite the fact that certain provisions of the arbitration agreement violated the Uniform Services Employment and Reemployment Rights Act (“USERRA”).

Rodney Bodine, a member of the U.S. Army Reserve, was part of the sales force at Cook’s Pest Control, Inc. (“Cook’s”) in Alabama. His employment contract with Cook’s contained an arbitration clause, which included provisions that 1) permitted the arbitrator to re-apportion costs and attorneys’ fees, and 2) set the statute of limitations for filing a claim under the agreement at six months. After being terminated, Mr. Bodine brought suit against Cook’s under the USERRA, 38 U.S.C. § 4301, and state law, alleging, inter alia, discrimination based on military service.

USERRA provides statutory protection to members of the military against discrimination by employers because of their military service. 38 U.S.C. § 4301(a)(3). It also contains a non-waiver provision, which provides that the chapter “supersedes any” contractual agreements that “reduces, limits, or eliminates in any manner any right of benefit provided by t[he] chapter.” § 4302(b). USERRA also states that there is no statute of limitations for bringing a claim under the Act, § 4327(b), and that no court costs or fees may be charged to a USERRA plaintiff, § 4323(h)(1). Mr. Bodine alleged that, because the statute of limitations and fee provision of the arbitration agreement conflicted with USERRA, the entire arbitration provision was void under USERRA’s non-waiver provision.

Cook’s moved to compel arbitration. Although it conceded that the two provisions Mr. Bodine complained about did indeed violated USERRA, Cook’s argued that the court could use the employment contract’s severability clause to excise the two invalid provisions while retaining and enforcing the remainder of the arbitration agreement, pursuant to the Federal Arbitration Act’s (“FAA”) “liberal policy favoring arbitration agreements.” The district court agreed and, under Alabama’s severability law, it struck the statute of limitations and fee provisions from the arbitration agreement. The court dismissed the suit without prejudice and ordered Mr. Bodine to submit his claims to arbitration.

Over a dissent by Judge Martin, a panel of the Eleventh Circuit affirmed the district court’s order and concluded that “USERRA’s non-waiver provision should not be read to automatically invalidate an entire agreement with USERRA-offending terms. Instead, the plain language of [USERRA] contemplates modification of an agreement by replacing USERRA-offending terms with those set forth by USERRA.” (Emphasis added.) The Court held that the “USERRA’s non-waiver provision does not conflict with the FAA: both statutes provide a mechanism for striking from an arbitration agreement a term in conflict with USERRA.”

Despite the Court’s holding, employers are wise to consider USERRA’s provisions when drafting employment contracts and arbitration agreements. In addition to the statute of limitations and fee provisions at issue in Bodine, USERRA contains provisions pertaining to jurisdiction, § 4323(b), and venue, § 4323(c). The Act also requires employers to “provide to persons entitled to rights and benefits under this chapter a notice of the rights, benefits, and obligations of such persons and such employers under this chapter.” § 4334(a).

On March 17, 2016, the U.S. Court of Appeals for the Second Circuit decided Graziadio v. Culinary Institute of America, holding that sufficient evidence existed to find that the Culinary Institute of America’s (“CIA”) human resources director was an “employer” under the Family and Medical Leave Act (“FMLA”) and could therefore be held individually liable for violations of the FMLA. In reaching this decision, the court found that the economic-realities test used to analyze whether an individual is an “employer” under the Fair Labor Standards Act (“FLSA”) should also be used to determine whether an individual is an “employer” under the FMLA. The Second Circuit vacated and remanded the Southern District of New York’s summary judgment decision on the question of individual liability for further consideration under the economic-realities standard. The application of this test likely means an increased risk of individual liability for human resources directors, supervisors, and other members of management charged with violating an employee’s rights under the FMLA.

Continue Reading Second Circuit Outlines Test for Individual Liability of Human Resources Directors under the FMLA

On January 20, 2016, the administrator of the Department of Labor’s Wage and Hour Division (WHD), David Weil, issued an “Administrator’s Interpretation” (AI) regarding the agency’s interpretation of joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The new AI purports to clarify the WHD’s position that joint employment under these statutes “should be defined expansively.” When considered alongside the National Labor Relations Board’s (NLRB or the Board) controversial decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), in which the Board dramatically expanded the definition of “joint employer” under the National Labor Relations Act (NLRA), the AI may be another step in a coordinated federal agency push to expand joint-employer liability under a variety of labor and employment statutes.

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For years, there has been nearly universal agreement among the courts that managers do not engage in “protected activity” for retaliation claim purposes under most employment laws when they raise concerns about compliance issues in the regular course of performing their job duties. The traditional reasoning held that a manager whose job includes evaluating and/or reporting compliance issues, and who does so in furtherance of his or her job duties, should not become cloaked in anti-retaliation protection for merely doing the job he or she is employed to do. Instead, to engage in protected activity, the manager must step outside his or her role as a manager and become adversarial to the employer. The so-called “manager rule” has been consistently used by courts to reject retaliation claims under various employment statutes by human resources professionals and supervisors who report employment-related compliance issues related to other employees.

Continue Reading 9th Circuit Tosses Aside “Manager Rule” for FLSA Retaliation Cases; Holds HR Director May Pursue Claim

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