Published: March 27, 2017

On March 23, Judge Stengel in the Eastern District of PA denied an employer’s motion to dismiss a Title VII case filed by an employee claiming discrimination and harassment based on her appearance and perceived sexual orientation. Ellingsworth v. Hartford Fire Insurance Co., No. 16-3187 (E.D.P.A. Mar. 23, 2017).

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Published: March 22, 2017

The Second Circuit was “on point” when it reminded us about an old proposition in a brand new way this week. In the case of Stevens v. Rite Aid Corporation, the panel held that Rite Aid was justified in terminating a pharmacist with a needle phobia under the ADA after finding that no reasonable accommodation could have allowed him to perform his essential job functions.

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Published: March 13, 2017

Snow days, hurricanes, power outages, floods - when weather of biblical proportions forces you to close or prevents your employees from getting to work, what do you do?

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Published: March 9, 2017

In a published decision issued March 6, 2017, the New Jersey Appellate Division held that a trial judge erred by reducing an employee-plaintiff’s back pay award in light of his receipt of unemployment compensation benefits. Fornaro v. Flightsafety International, Inc., No. A-1295-14T2. The plaintiff in Fornaro was a flight instructor who was discharged, he claimed, based on disability in violation of the New Jersey Law Against Discrimination (NJ LAD).

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Published: February 27, 2017

In May 2016, the Obama Administration’s U.S. Department of Justice’s Civil Rights Division and U.S. Department of Education’s Office for Civil Rights issued a Dear Colleague letter directing schools to recognize and treat their students consistent with their gender identities once they received notice of any change.

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Published: February 21, 2017

Employees at payroll processing giant ADP were held to the terms of a non-compete contained in online stock award documents when they clicked the “I have read and agreed” button in order to receive stock grants. On February 7, 2017, the U.S. Court of Appeals for the Third Circuit, in ADP, LLC v. Lynch, affirmed the district court's decision to partially enforce non-compete agreements against two of ADP's former employees.

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Published: February 13, 2017

GOP Reacts Swiftly to NLRB General Counsel’s Memorandum Regarding the Status of Division I Scholarship Football Players at Private Universities

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Published: February 7, 2017

A stalwart of collective bargaining, the union security clause, is under assault by the “National Right to Work Act” (H.R. 785) that Representatives King (R – Iowa) and Wilson (R – South Carolina) introduced in the House on February 1, 2017. Despite the act’s name, this proposed legislation, and its many state analogs, has nothing to do with protecting an employee’s job or ensuring anyone the right to get work.

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Published: February 3, 2017

On January 25, 2017, the U. S. Court of Appeals for the Seventh Circuit issued a decision in the case of Equal Employment Opportunity Commission v. Flambeau, Inc. In Flambeau, the EEOC claimed the employer’s wellness program violated the American with Disabilities Act (ADA), since an employee was required to complete both a health risk assessment and biometric screening in order to be eligible for the employer’s health coverage.

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Published: February 2, 2017

In a recent decision by the Fourth Circuit, the Court established a new test for determining whether two entities are “joint employers.” The case arose when employees of a construction subcontractor sought overtime wages from the project’s general contractor. A District Court had previously issued summary judgment in favor of the general contractor, but the Fourth Circuit’s recent opinion reversed—finding the general contractor liable for overtime wages because it “jointly employed” the subcontractor’s employees.

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Published: January 27, 2017

Philadelphia’s mayor signed a law this week that restricts employers from asking job applicants to disclose salary history information or to require disclosure of wage history.  It also prohibits employers from relying on wage history of a prospective employee in determining the wages for the applicant, including the negotiation of an employment contract,  unless the applicant voluntarily discloses that information to the prospective employer.  The law prohibits retaliation against a person who refuses to provide wage history information.  
 

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Published: January 26, 2017

President Donald Trump appointed Philip A. Miscimarra as acting chairman of the National Labor Relations Board (NLRB).  Miscimarra was nominated to the NLRB by President Obama in 2013, where he was then unanimously confirmed by the ruling Senate committee.  

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Published: January 23, 2017

On January 19, the National Restaurant Association (“the Association”) asked the U.S. Supreme Court to review a Department of Labor (“DOL”) rule that prohibits “tip pools,” the sharing of tips among “front of the house” staff (i.e., servers and bartenders) and “back of the house” staff (i.e., cooks and dishwashers).

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Published: January 19, 2017

Employers across the country will be watching to see how and if President-Elect Trump’s positions on labor and employment issues materialize after his inauguration.  He hasn’t been as vocal on labor and employment issues as on other issues, but he has campaigned or otherwise discussed several issues that could affect employers in 2017.  
 
Here’s a look at Trump’s positions on labor and employment issues; Saul Ewing attorneys weigh in on the impact of some of these changes:

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Published: January 13, 2017

The Pennsylvania Superior Court held yesterday in Dittman v. UPMC et al. that an employer owes no common law duty under a negligence theory to use reasonable care in the collection and storage of employee information and data.  The case involved a data breach by hackers of birth dates, social security numbers, tax information, addresses, salaries, and bank information of 62,000 UPMC employees and former employees.  The data was stolen from UPMC’s computer systems and used to file fraudulent tax returns and steal tax refunds of some employees.

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Published: January 13, 2017

Today, the U.S. Supreme Court agreed to hear three cases to resolve a split in the Circuits over whether class action waivers in employment arbitration agreements violate the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) has repeatedly ruled that such waivers are illegal under federal labor law, as they interfere with employees’ right to engage in “concerted activity” under Section 7 of the NLRA, notwithstanding the Supreme Court’s repeated approval of such waivers outside of the labor context.

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Published: January 10, 2017

Last week, a federal judge in Texas denied the U.S. Department of Labor’s (DOL) request to stay a lawsuit challenging implementation of the DOL’s new overtime rules during the pendency of the DOL’s appeal to the Fifth Circuit Court of Appeals.

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Published: January 6, 2017

The saga of former Attorney General Kathleen Kane continued in the courts on January 4, 2017 when Judge Sylvia Rambo (Middle District of Pennsylvania) dismissed an FMLA claim brought against her by a former investigator. In his Complaint, the investigator claimed that Kane retaliated against him for taking FMLA leave by placing him on paid administrative leave.  His leave began in June 2015; as of June 2016, he was still on paid administrative leave, with no reason for the leave and no expiration date.

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Published: January 5, 2017

An amendment to the Delaware Discrimination in Employment Act (DDEA) has taken effect and it opens employers up to new discrimination claims by Delaware employees.
 

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Published: January 2, 2017

The Equal Employment Opportunity Commission (EEOC) recently issued final regulations under the American with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) with respect to employer-wellness programs, which took effect on January 1, 2017.  Collectively, with the rules under HIPAA for wellness programs, these rules help establish the legal landscape for employers desiring to design such programs.  The ADA final regulations permit employers to make disability-related inquiries and medical examinations as part of their wellness program as long as the

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Published: December 27, 2016

The Washington, D.C., City Council passed landmark legislation this week that would provide all private sector D.C. employees with eight weeks of paid leave after the birth or adoption of a child, two weeks of paid personal sick leave, and six additional weeks of paid leave for caring for sick family members.  The Universal Paid Leave Amendment Act of 2016 (Bill 21-415) endeavors to create one of the most expansive leave benefits packages in the country.   
    

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Published: December 14, 2016

This week, the U.S. Equal Employment Opportunity Commission (EEOC) issued a resource document that provides employees with mental health conditions an explanation of their rights under the Americans with Disabilities Act (ADA).  

The publication (available here), offers answers to a series of questions relating to workplace discrimination and harassment, privacy rights, and rights to reasonable accommodations, including the following:

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Published: December 13, 2016

Last month, New York City Mayor Bill de Blasio signed into law Int. No. 1017-C, dubbed the Freelance Isn’t Free Act (“Act”), a unique law that provides penalties for failure to follow certain standards in contracting with and paying freelance workers.

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Published: December 7, 2016

The Seventh Circuit upheld the dismissal of claims brought by two former University of Pennsylvania student-athletes against the NCAA and more than 120 NCAA Division I universities and colleges, alleging that student athletes are employees entitled to a minimum wage under the Fair Labor Standards Act (FLSA).  
 

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Published: December 2, 2016

The U.S. Justice Department announced that it is appealing last week’s nationwide preliminary injunction that temporarily blocked implementation of the Labor Department’s new overtime rule.  The rule, which was scheduled to go into effect on December 1, 2016, would have extended eligibility for overtime pay to an estimated 4.2 million exempt workers unless their weekly salaries were increased to new minimum salary levels.  The U.S.

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Published: December 1, 2016

On November 28, 2016, a Texas federal judge denied a request for a preliminary injunction, which sought to enjoin implementation of the anti-retaliation provisions of the Occupational Safety and Health Administration’s (“OSHA”) new injury and reporting rule, which was unveiled by OSHA in May of this year. The final rule requires electronic reporting of workplace injuries and illnesses, requires employers to inform workers of their right to access injury and illness data, and prohibits retaliation against employees for reporting on-the-job injuries and illnesses.

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Published: November 29, 2016

A nationwide temporary injunction blocking the Department of Labor’s new salary level Rule from going into effect on December 1, 2016 was issued last week by Judge Amos L. Mazant III of the U.S. District Court for the Eastern District of Texas. The new Rule would have resulted in extending eligibility for overtime pay to an estimated 4.2 million exempt workers unless their weekly salaries were increased to the new minimum salary levels. 

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Published: November 28, 2016

President-Elect Donald Trump has offered the job of Attorney General of the United States to Senator Jeff Sessions (R- Alabama).  The announcement raised eyebrows in some circles due to Senator Sessions’ history and recent statements about several hot-button civil rights issues. The Department of Justice plays a significant role in interpreting and enforcing many federal civil right laws.   

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Published: November 22, 2016

The new Fair Labor Standards Act (“FLSA”) overtime rule, which set to raise the white collar exemption minimum salary requirement from $23,660 per year to $47,476 per year effective December 1, 2016, was blocked this afternoon by a Texas federal judge. The judge indicated that the plaintiffs, comprised of 21 states, met the burden required for a preliminary injunction finding that the Department of Labor (“DOL”) exceeded its delegated authority. The court held that the DOL does not have the authority to utilize a salary-level test or an automatic updating mechanism.

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Published: November 21, 2016

On November 16, 2016, a District Judge in the Northern District of Texas permanently blocked the U.S. Department of Labor from enforcing a new regulation  that would have increased disclosure requirements for employers that use advisors, including  law firms, to help in union avoidance and organizing campaigns. Nat’l Fed’n of Independent Bus. v. Perez, No. 16-cv-066 (N.D. Tex. Nov. 16, 2016).

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Published: November 17, 2016

The U.S. Citizenship and Immigration Services (USCIS) recently released a revised version of Form I-9, Employment Eligibility Verification.  By January 22, 2017, employers must start using the revised form dated 11/14/2016 N, but may use the version dated 03/08/2013 N or the revised version until then.  Employers should continue to follow existing storage and retentions rules for all of their previously completed Forms I-9.

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Published: November 7, 2016

Last week, on November 4, 2016, a District Judge in the Eastern District of Pennsylvania held that discrimination based on sexual orientation constitutes sex stereotyping and is prohibited by Title VII. EEOC v. Scott Medical Health Center, 2:16-cv-00225 (E.D. Pa. Nov. 4, 2016).  The Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit on behalf of Dale Baxley, a gay male employee who worked for Scott Medical Health Center PC. Mr. Baxley alleges that he was constructively discharged due to an alleged sexually hostile work environment.

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Published: November 1, 2016

This week the White House issued a “call to action” regarding the inclusion of non-compete agreements in employee contracts for certain categories of workers.  The White House is encouraging the passage of  new laws by the states limiting non-competes in various industries, even providing guidelines on how to accomplish this goal.

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Published: October 28, 2016

Earlier this week, government contractors won a significant battle when a federal court in Texas ruled that President Obama overstepped his authority and enjoined the implementation of the majority of the burdensome “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673), along with the enforcement of the corresponding Federal Acquisition Regulations (“FAR”) and Department of Labor Guidance.

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Published: October 24, 2016

On October 20, 2016, the Department of Justice and Federal Trade Commission issued their joint “Antitrust Guidelines for Human Resource Professionals” (“Guidelines”), which might come as a bit of a shock to the HR world, but not to the antitrust community. Hiring and compensation decisions can result in antitrust violations – and these Guidelines do not create any new law in that arena.

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Published: October 24, 2016

The ripple effects persist as lower courts continue to apply the Supreme Court’s holding in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), which established a new “standing,”  threshold for plaintiffs seeking to assert a claim under the federal Fair Credit Reporting Act, more affectionately known by the acronym FCRA.  The Northern District of California in  Dutta v. State Farm Mutual Automobile Insurance Company, 3:14-CV-04292 (N.D. Cal. Oct.

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Published: October 14, 2016

The New Jersey State Legislature has proposed a new bill (A-4243) that would require the State or its entities to publicly disclose the details of settlement agreements under its whistleblower protection law, the Conscientious Employee Protection Act.  CEPA, also known as the “Whistleblower Act,” prohibits an employer from taking retaliatory action against an employee who discloses an illegal act to a supervisor or public body, testifies to a public body conducting an investigation, or reports or refuses to participate in fraudulent or criminal activity.

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Published: October 13, 2016

Earlier this week, the Supreme Court denied a petition for review from a case holding that morbid obesity, without an underlying physiological condition, is not a “disability” under The Americans With Disabilities Act (ADA). The ADA prohibits an employer from discriminating against “a qualified individual on the basis of disability” in regard to terms of employment, including termination or providing reasonable accommodations. The petitioner in the lawsuit asserted that the ADA Amendments Act of 2008, which substantially broadened the definition of “disability,” now includes “obesity.”

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Published: October 5, 2016

On September 25, 2016, California Governor Jerry Brown signed into law S.B. 1241, which prohibits employers from requiring employees, as a condition of employment: (1) to litigate or arbitrate claims arising in California outside of California; and (2) to agree to the application of another state’s law for controversies arising in California.  These prohibitions apply to contracts entered into, modified, or extended on or after January 1, 2017, and are applicable to employees who primarily reside and work in California.

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Published: September 30, 2016

On September 16, 2016, in Christiansen v. Omnicom Group Inc. et al., 16-cv-748 (2d Cir 2016), ad agency DDB Worldwide (“DDB”) argued before the Second Circuit that Title VII does not support discrimination claims based on sexual orientation. 

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Published: September 29, 2016

On September 28, the U.S. House of Representatives passed a bill that would delay by an additional six months the Department of Labor’s new overtime rule which more than doubles the minimum salary level for exemption from overtime pay under the Fair Labor Standards Act.  The new rule, which was unveiled in May 2016 after many months of public comment and debate, is currently set to take effect December 1, 2016.

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Published: September 28, 2016

Two New Jersey state senators have introduced a bill that would prohibit employers from asking applicants about their previous salaries and from using that information to make decisions about compensation.  See Assembly Bill 4110.  The bill is aimed at preventing wage discrimination and promoting equal pay.

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Published: September 23, 2016

Effective October 1, 2016, employers in Montgomery County, Maryland will be required to comply with the county’s new Earned Sick and Safe Leave Law, which allows eligible employees to accrue up to 56 hours of paid leave per calendar year.  The Law applies generally to all employers doing business in Montgomery County, and to their employees who regularly work more than eight hours each week.  How much leave an employer must provide depends on the employer’s size.

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Published: September 19, 2016

Last week, the Eleventh Circuit affirmed a decision dismissing a case filed by the EEOC on behalf of a black applicant whose employment offer was rescinded pursuant to the company’s grooming policy when she refused to cut off her dreadlocks.  See Equal Employment Opportunity Comm'n v. Catastrophe Mgmt. Sols., No. 14-13482, 2016 WL 4916851 (11th Cir. Sept. 15, 2016).

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Published: September 14, 2016

On September 8, the Third Circuit affirmed a Middle District of Pennsylvania decision granting summary judgment in favor of CVS Rx Services, Inc. on an employee’s pregnancy discrimination claims under the Americans with Disabilities Act.  See Moore v. CVS Rx Servs., Inc., No. 15-3836, 2016 WL 4698261 (3rd Cir. Sept. 8, 2016).

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Published: September 12, 2016

Saul Ewing’s Labor and Employment Practice is proud to host this practical, interactive workshop, which will provide participants with critical information on developments and updates to the Americans with Disabilities Act. This session will help your company navigate through accommodating physical and mental disabilities, tricky leave issues, workplace threats, conduct rules and employee drug and alcohol issues. We will also cover new pregnancy accommodation rules required by state laws and U.S. Supreme Court precedent.

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Published: September 7, 2016

Today, in Mohamed v. Uber Technologies, Inc., the Ninth Circuit ruled that Uber drivers must arbitrate their labor claims individually, and cannot pursue them as a class.  See Mohamed v. Uber Technologies, Inc., No. 15-16178, 2016 WL 4651409 (Sept. 7, 2016 9th Cir.).  Independent contractor drivers allege that Uber violated the Fair Credit Reporting Act and state statutes by running unauthorized background checks on them.

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Published: September 6, 2016

Ohio’s Medical Marijuana Law takes effect September 6, 2016, meaning that patients with qualifying medical conditions will be able to lawfully purchase and use medical marijuana without government recourse (that is, at least by the State of Ohio, since any form of marijuana use remains prohibited by the federal government).  (H.B. 523)  With the new law, Ohio joins about half of the other U.S.

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Published: August 30, 2016

Today the EEOC issued final guidance on workplace retaliation—the first revision of this policy in 18 years.  The revised guidance expands the scope of protected employee activity to better align with Supreme Court precedent in Crawford v. Metropolitan Government of Nashville and Davidson County, which held that, “'[w]hen an employee communicates to her employer a belief that the employer has engaged in . . .

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Published: August 24, 2016

Reversing more than a decade of precedent, the activist National Labor Relations Board (NLRB) ruled on August 23, 2016 in The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia–GWC, UAW that graduate and undergraduate teaching assistants and graduate research assistants who perform services in connection with their studies at private universities may be statutory employees under the National Labor Relations Act (NLRA).

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Published: August 19, 2016

On August 19, 2016, Illinois enacted the Illinois Freedom to Work Act (Public Act 99-0869), which prohibits a private employer from entering into a non-compete agreement with a “low-wage employee.”  A “low-wage employee” is defined as an employee who earns the greater of the applicable minimum wage rate or $13.00 per hour.  The Act, which takes effect January 1, 2017 and will be applied prospectively, renders “illegal and void” agreemen

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Published: August 18, 2016

Employers of all sizes are receiving notices from Health Insurance Marketplaces (“Notice” or “Marketplace Notice”) alerting them that an employee or employees have obtained Exchange coverage and are eligible for and receiving financial assistance to purchase that coverage.

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Published: August 1, 2016

A former adjunct teacher who accused her employer of sexual orientation discrimination lost her case because federal law does not offer protection for employees who say they are discriminated against on that basis.  A panel of the Seventh Circuit Court of Appeals was bound by precedent to deny her claims, but noted that employees who bring sexual orientation discrimination claims under Title VII of the Civil Rights Act of 1964 should be protected. For more information, click here

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Published: June 13, 2016

New overtime regulations unveiled by the U.S. Department of Labor (DOL) on May 18, 2016 will affect approximately 4.2 million currently “exempt” workers.  Unless their salaries are increased to at least $913/week, these employees will become entitled to receive overtime pay.

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