In late January 2019, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (“ADEA”) does not allow outside job applicants to bring disparate impact claims.  The plaintiff in the case, Dale Kleber, an attorney, is now asking the Supreme Court to review that decision.
Continue Reading

In a unanimous 9-0 decision authored by Justice Ginsburg, the U.S. Supreme Court resolved a split amongst the circuit courts of whether filing a charge of discrimination pursuant to Title VII is a jurisdictional prerequisite or a claims-processing rule.
Continue Reading

Federal Rule of Civil Procedure 23(f) governs petitions for interlocutory appeals of orders that grant or deny class certification and requires that a petition for permission to appeal must be filed “within 14 days after the order is entered.” It makes no mention of motions for reconsideration.
Continue Reading

The Supreme Court once again has shown its strong preference for enforcing the terms of arbitration agreements as written by the parties.  In Henry Schein Inc. v. Archer & White Sales Inc., Justice Kavanaugh’s first written opinion, the Court held that when an arbitration agreement delegates the threshold question of arbitrability to an arbitrator, the arbitrator, not a court, should decide the question, even if it is clear to a court that the dispute is not covered by the arbitration agreement. 
Continue Reading

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

As we wrote about last month, on May 21, 2018, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), rejecting perhaps the largest remaining obstacles to the enforcement of class action waivers in arbitration agreements in the employment context.  The Court concluded that the class action waivers did not violate the National Labor Relations Act.  Although the Court’s opinion also seemed dispositive of whether such agreements could be avoided under the Fair Labor Standards Act, at least one claimant tried to continue to litigate the issue, which was disposed of last week in Gaffers v. Kelly Servs., Inc., No. 16-2210 (6th Cir. 2018).  And now the Sixth Circuit has addressed whether Epic Systems would apply to arbitration agreements with putative independent contractors who contended that they should have been treated as employees.
Continue Reading

Last week, the United States Supreme Court released its decision in Digital Realty Trust v. Somers, where the Court unanimously adopted a narrow reading of the Dodd-Frank Act’s anti-retaliation “whistleblower” provision.  The Court held that the provision applies only to individuals who report securities violations directly to the Securities and Exchange Commission.
Continue Reading

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.  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.  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?
Continue Reading

On January 8, 2018, the United States Supreme Court denied a petition for certiorari seeking to overturn the Fourth Circuit’s new joint employer test under the Fair Labor Standards Act.  As a result, employers will continue to be faced with differing joint employer standards in the various federal circuits.
Continue Reading