On August 16, 2024, a divided Seventh Circuit panel held that a court needs to establish personal jurisdiction over each individual member of a Fair Labor Standards Act (“FLSA”) collective, further contributing to an existing circuit split on this issue.
Continue Reading Seventh Circuit Weighs in on Jurisdiction in FLSA Collective Cases
In the California case of Okonowsky v. Garland, a male supervisor in a federal prison (a lieutenant) used his private Instagram account to post sexually offensive content about a female prison psychologist. The District Court dismissed the psychologist’s hostile work environment claim, holding that the posts occurred entirely outside the workplace, were made on the lieutenant’s personal Instagram account, and were not sent or otherwise displayed to the psychologist. The Ninth Circuit reversed the dismissal of the Title VII claim and found that, in view of the generally permanent nature of the sexual posts and the references to the workplace on the Instagram account, the psychologist’s work environment could have been made hostile, especially since she had to interact with the lieutenant on a regular basis, and despite the fact that the lieutenant’s conduct occurred “off-site.”
Continue Reading Recent Judicial Decisions Highlight the Importance of Anti-Harassment Training
Statutory protections for freelance workers have increased nationwide, with states and local governments continuing to pass legislation requiring written contracts and specific payment dates, and prohibiting discrimination and retaliation against freelance workers attempting to exercise their rights, including by amending state anti-discrimination laws to provide coverage for freelancers and other independent contractors. On November 22, 2023, New York became the second state – after Illinois – to adopt such statutory protections for freelance workers when Governor Kathy Hochul signed the “Freelance Isn’t Free Act” (the “Act”). The Act, which takes effect on August 28, 2024, is similar to other recently passed freelance worker laws but differs in a few material respects of which companies should be aware. Learn more here.
On 17 July 2024, the King delivered his speech at the State Opening of Parliament and the new UK Labour Government’s legislative programme for the year ahead were unveiled.
Continue Reading The King’s Speech: Labour’s plans for employment law reforms in the UK
Over the last few years, local governments have taken the lead in adopting statutory protections for freelance workers across the country. These protections include requiring written contracts, specific payment dates, and a prohibition on discrimination and retaliation against freelance workers attempting to exercise their rights. On August 4, 2023, Illinois became the first state to adopt such statutory protections for freelance workers when Governor JB Pritzker signed the Freelance Worker Protection Act (the “Act”). The Act, which took effect on July 1, 2024, resembles other freelance worker laws but has its own nuances that companies should be mindful of to ensure their continued compliance. To read more, see our recent article.
The California Private Attorneys General Act (“PAGA”) is set to undergo a significant overhaul, the first since its enactment nearly two decades ago. On June 18, 2024, Governor Gavin Newsom announced that an agreement was reached between business and labor groups to reform PAGA. The agreement comes on the heels of the looming June 27, 2024 deadline to remove a PAGA proposition from the November 5, 2024 ballot. The agreement, if passed by California’s state legislature, would overhaul several aspects of PAGA and withdraw a ballot measure that would have repealed PAGA’s statutory scheme altogether.
Continue Reading Will PAGA Be Reformed?
The Supreme Court Rejects a Watered-Down Approach to Preliminary Injunctions
On June 13, 2024, the United States Supreme Court held that when considering the National Labor Relation Board’s (the “Board” or “NLRB”) request for a preliminary injunction under Section 10(j) of the National Labor Relations Act (the “NLRA”), district courts must apply the traditional four-factor test for injunctive relief rather than a less stringent two-factor test used by many courts in evaluating the Board’s injunction requests. Starbucks Corp. v. McKinney, No. 23-367 (See here).
Continue Reading Can I Please Get Four Shots of Espresso Instead of Two?
On April 29, 2024, the U.S. Equal Employment Opportunity Commission (the “EEOC” or the “Commission”) published its “Enforcement Guidance on Harassment in the Workplace” (the “Guidance”), which is the first harassment guidance issued by the EEOC since 1999. (See here.) Harassment claims continue to be prevalent in the workplace. During the five fiscal years (“FY”) ending with FY 2023, over one-third of the discrimination charges received by the EEOC included an allegation of unlawful harassment based on race, sex, disability, or other protected characteristic. The Guidance now serves as a single resource for workplace harassment laws and includes discussion of several timely topics, including, but not limited to, protections for LGBTQ+ workers, harassment in the remote workplace, and the interplay between religious freedom and unlawful harassment. To read more, see our recent article.
On May 16, 2024, the U.S. Supreme Court unanimously held that lawsuits involving an arbitrable dispute must be stayed upon the request of a party. Rather than dismiss the case, section 3 of the Federal Arbitration Act (the “FAA”) compels the court to issue a stay until the arbitration is completed. Smith, et al. v. Spizzirri, et al., No. 22-1218 (See here).
Several current and former delivery drivers sued their employer in Arizona state court alleging their employer violated state and federal employment laws by misclassifying them as independent contractors, failing to pay them required minimum and overtime payments, and failing to provide paid sick leave.
After removing the case to federal court, the employer filed a motion to compel arbitration and dismiss the lawsuit. Although the parties agreed that the claims were subject to arbitration under the FAA, they disagreed on how the district court should handle the lawsuit. The employer argued that section 3 of the FAA permitted the district court to dismiss the case, while the plaintiffs argued that the FAA required the district court to stay the action pending arbitration. The district court dismissed the action without prejudice and the Ninth Circuit affirmed.
The delivery drivers filed a petition for a writ of certiorari and the Supreme Court reversed the Ninth Circuit’s decision and remanded.
Citing section 3 of the FAA, the Supreme Court held that when a dispute is subject to arbitration, the court “shall on application of one of the parties stay the trial of the action until such arbitration” has concluded. 9 U. S. C. §3. The Court found that the FAA’s structure and purpose confirm that a stay is required.
Delivering the Court’s opinion, Justice Sotomayor emphasized that the statutory text, structure, and purpose of section 3 all point to its requirement for a court to stay the proceeding upon request. Id. Not only does staying a suit upon the completion of arbitration comport with the supervisory role the FAA envisions for courts, it also avoids invoking procedural mechanisms for the filing of an immediate appeal, which would be permissible upon a dismissal of the suit. Id.
On May 7, 2024, in Ryan, LLC v. FTC et al., Judge Ada Brown of the U.S. District Court for the Northern District of Texas set a briefing schedule on Ryan’s Motion for Stay of Effective Date and Preliminary Injunction (the “Motion”) attacking the FTC Final Rule banning employer-employee non‑compete restrictions, and ordered that she would rule on the merits of the Motion on or before July 3, 2024—two months before the FTC Final Rule is scheduled to become effective on September 4, 2024.
Continue Reading Motion Seeking to Stay or Enjoin FTC Final Rule Banning Employer-Employee Non‑Competes Set for Ruling by July 3, 2024