Mayer Brown updates

DOJ argues that Title VII does not prohibit discrimination based on gender identity
Mayer Brown
  • Employment & Benefits
  • USA
  • 16 January 2019

The US Department of Justice (DOJ) recently filed a brief in the Supreme Court arguing that Title VII of the Civil Rights Act does not prohibit discrimination based on gender identity. The brief underscores the DOJ's sharp disagreement with the Equal Employment Opportunity Commission. Until the Supreme Court provides more clarity on this issue, employers should consider reviewing their employment policies and hiring practices to ensure that they are treating transgender status as a protected category.

California appellate court holds individuals personally liable for civil penalties for wage and hour violations
Mayer Brown
  • Employment & Benefits
  • USA
  • 09 January 2019

The California Court of Appeal for the Fourth Appellate District recently held that individuals can be held personally liable for civil penalties under the California Labour Code. The decision serves as an important reminder for employers that compliance with wage and hour laws should be a primary concern. Under the decision, employees can hold individual owners personally liable for penalties associated with wage and hour violations, in addition to attorneys' fees and costs.

California appellate court rules that Dynamex test applies only to wage order claims
Mayer Brown
  • Employment & Benefits
  • USA
  • 02 January 2019

A California appellate court has ruled that the California Supreme Court's recent decision in Dynamex Operations West, Inc v Superior Court, which established a new test for determining whether to classify workers as independent contractors, is limited to claims under the Industrial Welfare Commission's wage orders. After the decision in Dynamex, there has been some uncertainty about whether the test applies to Labour Code claims as well as wage order claims.

Economic realities rather than corporate formalities govern independent contractor status
Mayer Brown
  • Employment & Benefits
  • USA
  • 19 December 2018

The Tenth Circuit recently issued a decision in which it reversed the dismissal of the US Department of Labour's lawsuit against a janitorial company for misclassifying janitorial workers as independent contractors. The decision emphasises that if the economic realities suggest that workers are in fact employees, the existence of corporate intermediaries in the contractual relationship will not immunise employers from liability under the Fair Labour Standards Act.

OSHA issues guidance memorandum on employer safety incentive programmes and post-incident drug testing
Mayer Brown
  • Employment & Benefits
  • USA
  • 12 December 2018

The Occupational Safety and Health Administration recently issued a guidance memorandum clarifying its position on workplace safety incentive programmes and post-incident drug testing. Employers should review this memorandum, including the specific examples of lawful policies and programmes, in evaluating whether their policies and programmes are likely to have a negative impact on employees reporting workplace injuries or illnesses.

Court rules employers can require employees to execute arbitration agreements with class or collective action waivers
Mayer Brown
  • Employment & Benefits
  • USA
  • 17 October 2018

A unanimous panel of the Sixth Circuit recently held that the Fair Labour Standards Act does not prohibit employers from requiring employees to execute arbitration agreements with class or collective action waivers. The decision joins those from other federal courts of appeal in holding that claims under the Fair Labour Standards Act are subject to agreements to arbitrate on an individual basis.

Ninth Circuit rules on wage and hour class action claims
Mayer Brown
  • Employment & Benefits
  • USA
  • 10 October 2018

The Ninth Circuit recently held that a settlement of class claims in an opt-out class action asserting only state law wage and hour claims also released the plaintiff's Fair Labour Standards Act claims arising from the same allegations on which her state claims had been predicated. The decision reinforces the importance of carefully crafting release language in all settlements, including class action settlements, and provides guidance on what language to include in such releases to preclude future claims.

New NLRB guidance memorandum on workplace policies and handbooks
Mayer Brown
  • Employment & Benefits
  • USA
  • 15 August 2018

The National Labour Relations Board (NLRB) recently issued a new guidance memorandum clarifying the standard that it will apply when interpreting employer workplace policies and handbooks following its recent decision in The Boeing Co. The guidance memorandum clarifies that post-Boeing, many employment policies and procedures that may have been deemed unlawful under the previous NLRB General Counsel memoranda will now be upheld.

New York appellate court sides with Postmates in couriers' misclassification action
Mayer Brown
  • Employment & Benefits
  • USA
  • 08 August 2018

A New York intermediate appellate court has handed Postmates a victory in the ongoing battle over employment status in the gig economy. Although this decision is not binding on courts outside of New York's Third Department, it provides useful information to gig economy companies on how to structure their operations in jurisdictions where classification status is largely determined by the employer's level of control.

California Supreme Court affirms employers' insurance coverage for negligent employment practices
Mayer Brown
  • Employment & Benefits
  • USA
  • 01 August 2018

Previously, there was some uncertainty among California state and federal courts about whether coverage for accidents under general liability insurance policies extended to claims for negligent employment practices. However, a recent California Supreme Court case makes clear that such claims are covered and expresses a strong policy preference in favour of that coverage.

Second Circuit holds that sexual orientation discrimination is sex discrimination under Title VII
Mayer Brown
  • Employment & Benefits
  • USA
  • 06 June 2018

The US Court of Appeals for the Second Circuit recently reversed its prior precedent and held that Title VII's prohibition on sex discrimination includes a prohibition on sexual orientation discrimination. For years, states and municipalities have been adding laws prohibiting discrimination based on sexual orientation. However, whether Title VII prohibits discrimination based on sexual orientation under federal sex discrimination prohibitions has been actively debated in both courts and administrative agencies.

Transgender and gender transitioning status under Title VII
Mayer Brown
  • Employment & Benefits
  • USA
  • 30 May 2018

The US Court of Appeals for the Sixth Circuit has held that a funeral home violated Title VII of the Civil Rights Act 1964 when it fired a director because she was planning to undergo sex reassignment surgery and had requested to dress in women's clothing at work. Employers – particularly those in the Sixth Circuit – should consider reviewing their employment policies and hiring practices to ensure that they are treating transgender status as a protected category.

California Court of Appeal invalidates employee arbitration clause on basis of exemption to Federal Arbitration Act
Mayer Brown
  • Employment & Benefits
  • USA
  • 23 May 2018

The Fourth District of the California Court of Appeal recently ruled that a truck driver could not be compelled to arbitrate his claims in a state wage and hour class action against his staffing company employer, notwithstanding an arbitration clause in his employment contract that required individual arbitration rather than class actions. This ruling continues a line of California state court decisions giving a broad reading to the Federal Arbitration Act's transportation worker exception.

California Supreme Court clarifies method for calculating overtime rate of pay relating to flat-sum bonuses
Mayer Brown
  • Employment & Benefits
  • USA
  • 16 May 2018

A recent California Supreme Court decision has had significant implications for employers when determining the regular rate of pay used to calculate overtime following the payment of flat-sum bonuses. The court held that employers must calculate the overtime rate of pay in pay periods in which an employee earns a flat-sum bonus by dividing the flat-sum by the non-overtime hours actually worked in that pay period, not the total hours worked (including overtime).

National Labour Relations Board vacates joint employer ruling and reverts to Browning-Ferris standard
Mayer Brown
  • Employment & Benefits
  • USA
  • 09 May 2018

The National Labour Relations Board (NLRB) recently changed its joint-employer standard for the second time in the past three months, returning to the standard set in its 2015 decision in Browning-Ferris Industries. By reinstating Browning-Ferris, the current NLRB standard is that a joint-employer relationship exists whenever "two or more entities... share or codetermine those matters governing the essential terms and conditions of employment".

New parental leave and salary history laws take effect
Mayer Brown
  • Employment & Benefits
  • USA
  • 28 February 2018

California has enacted two new pieces of legislation in order to improve job opportunities, for women in particular. SB-63 expands the California Family Rights Act to provide up to 12 weeks' unpaid parental leave for employees of companies with as few as 20 employees, while AB-168 prohibits employers from seeking or relying on a job applicant's salary history information when deciding whether to offer employment and what salary to offer.

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