The United States District Court for the Middle District of Pennsylvania recently granted conditional certification for a collective action for two female employees of Five Guys who claim violations of the Equal Pay Act, a federal law which prohibits discrimination in the payment of wages to employees performing jobs that require “equal skill, effort, and responsibility.” 29 U.S.C. § 206(d). The…
The United States Supreme Court will decide soon whether to review a case from the Second Circuit Court of Appeals regarding whether sexual orientation is a protected trait under Title VII of the Civil Rights Act. What makes this case interesting is that the Department of Labor and the Equal Employment Opportunity Commission have taken the opposite sides, echoing the deep split of authority among…
A new case from the West Virginia Supreme Court of Appeals provides some guidance to employers on fitness for duty exams. This is the money quote: “An employer’s quest for reassurance that its employee is fit for duty where, as here, the evidence reveals a legitimate concern about the employee’s performance ability is not proof that the employee was regarded as impaired.” (Link: …
In September 2018, the National Labor Relations Board issued a proposed rule to establish a new standard for determining joint employer status under the National Labor Relations Act. Under the proposed rule, an employer may be considered a joint employer of another employer’s employees only if the two employers share or co-determine the employees’ essential terms and conditions of employment,…
On June 6, 2018, following the NLRB’s decision on The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), NLRB General Counsel Peter Robb issued a Guidance Memorandum (18-04) on how NLRB Regional Offices should interpret workplace rules. Boeing’s new standard strikes a balance between an employers’ right to govern its workplace and an employees’ right to exercise their Section 7 rights. When…
This week, the Department of Labor issued a new opinion letter regarding the Family and Medical Leave Act of 1993 (FMLA). The letter provides important guidance to employers who maintain a no-fault attendance policy and serves as a reminder that FMLA leave must be considered similar to that of other types of leave when reducing points assigned to employees.
This past May, the National Football League (“NFL”) unilaterally announced a change to its National Anthem policy, following a divisive 2017 season that saw players engaging in protests, plummeting television ratings, and negative publicity, including criticism from President Donald Trump. This change in policy required all players on the field to stand at attention while the anthem is played,…
A recent case from the Sixth Circuit underscores the complexity associated with accommodating individuals with disabilities and the problems that arise when employers deny requests for accommodations. In Hostettler v. The College of Wooster, No. 5:15-cv-01601 (6th Cir. July 17, 2018), the Court reversed summary judgment for Wooster and revived plaintiff’s claim for disability discrimination under…
On June 27, 2018, the Supreme Court of the United States ruled against public-sector unions by deciding that “agency fees”—payments made to the union by workers who are not union members that cover the costs of collective bargaining—are violative of First Amendment. You can read the opinion, Janus v. American Federation of State, County, and Municipal Employees, Council 31, here.
On May 21, 2018, the United States Supreme Court, in a 5-4 decision, held that employment arbitration agreements containing class and collective litigation waivers must be enforced under the Federal Arbitration Act (FAA). Justice Neil Gorsuch penned the majority decision, in Epic Systems Corporation v. Lewis, stating “Congress has instructed in the [Federal] Arbitration Act that arbitration…
