In the employment law arena, plaintiffs frequently bring in federal court both federal and state law claims arising from the same nucleus of fact. Plaintiffs can do so thanks to 28 U.S.C. § 1367, which permits federal courts to exercise supplemental jurisdiction over state claims arising from the “same case or controversy” as the federal claims. 28 U.S.C. § 1367(a). If the federal court dismisses the federal claims, often the court will decline to retain jurisdiction over just the state law claims and, consequently, dismisses those, too. See 28 U.S.C. § 1367(c)(3). If that happens, how long does the plaintiff have to re-file in state court the state law claims, which have not been adjudicated on the merits? The answer lies in 28 U.S.C. § 1367(d), which reads in relevant part:
On June 30, 2017, Missouri Governor Eric Greitens signed a bill into law, Senate Bill 43 (SB 43), that makes substantial changes to Missouri’s employment discrimination laws. The Bill, which goes into effect on August 28, amends the Missouri Human Rights Act (MHRA) and creates the “Whistle Blower Protection Act.”
Numerous changes have been made to the MHRA, so the Bill is worth a read. A few key changes that are likely of particular interest to employers relate to who may be liable for violations, the level of proof required to establish a violation, and the amount of damages that may be awarded.
The New York City Commission on Human Rights recently amended its rules to establish certain definitions and procedures applying the Fair Chance Act. The Act makes it unlawful to discriminate against job applicants and employees on the basis of criminal history, and is particularly important for employers for two reasons: (1) it applies not only to criminal background checks performed by third-party vendors but also to checks performed entirely by the company, and (2) out-of-state non-employers may be held liable for aiding and abetting violations of the Act. For more on this latter point, read our prior post on the New York Court of Appeals opinion in Griffin v. Sirva, Inc.
In a previous post, we discussed the Second Circuit’s opinion finding that Rite-Aid lawfully fired a long-tenured pharmacist after he refused to comply with the company’s new mandate that pharmacists administer immunizations. The plaintiff requested that the Second Circuit rehear the case, arguing that it should consider additional evidence. Without discussion, the Second Circuit denied the plaintiff’s request, upholding its prior decision. The pharmacist was not protected under the Americans with Disabilities Act because he could not perform an essential function of the job—administering immunizations—and there were no accommodations that would have permitted him to perform that function.
At the request of the U. S. Court of Appeals for the Second Circuit, the New York Court of Appeals recently answered several questions regarding liability under the New York Human Rights Law Section 296(15)—which prohibits denying employment on the basis of criminal convictions when doing so violates New York Correction Law Article 23-A—and Section 296(6)—which prohibits aiding and abetting such discrimination.
The Second Circuit recently held that Rite-Aid lawfully fired a long-tenured pharmacist after he refused to comply with the company’s new mandate that pharmacists administer immunizations. The Court’s decision overturned a jury verdict of $2.6 million in the pharmacist’s favor and reminds employers what it takes to show that a given function is “essential” and what accommodations are reasonable. The former pharmacist had claimed Rite-Aid illegally discharged and retaliated against him, and refused to accommodate his disability—trypanophobia, or needle phobia—under the Americans with Disabilities Act and similar state law.
It is very common for employers to pay employees by direct deposit, and an increasing number pay employees with payroll debit cards. Beginning March 7, 2017, employers in New York will have to deal with a new regulation regarding the use of direct deposit and payroll debit cards for payment of wages. The new regulation, issued by the New York Department of Labor and titled “Methods of Payment of Wages,” imposes heightened notice and consent requirements on employers offering either service.
A recent National Labor Relations Board decision found that particular provisions of an employer’s Code of Conduct unlawfully discouraged employees from engaging in Section 7 Activity.
Section 7 of the National Labor Relations Act protects an employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Act further makes it unlawful for an employer to interfere with these rights. What qualifies as employer interference is frequently considered by both the Board and courts.
The Eleventh Circuit confirmed that indefinite light duty is not a reasonable accommodation under the Americans with Disabilities Act (ADA), and employers are not required to create a permanent light-duty position for an employee.
Earlier this month, the San Francisco Board of Supervisors approved six weeks of fully-paid leave for new parents, the first city-wide legislation of its kind in the nation. Parents are entitled to the benefit if they have been employed by the employer for at least 180 days, work at least eight hours per week within the city or county of San Francisco, spend at least 40% of their hours per week working within the city or county of San Francisco, and are eligible to receive paid family leave from the State of California under the California Paid Family Leave law for the purpose of bonding with a new child. The new law requires that employers make up the difference between the benefit provided by the California Paid Family Leave law and 100% of the employee’s normal gross weekly wage.