Recently in Employment Law Category

Back in 1925, Congress passed the Federal Arbitration Act, which states that agreements to arbitrate disputes "shall be valid, irrevocable, and enforceable." Ten years later, Congress passed the National Labor Relations Act, a federal law that protects the rights of certain employees to unionize, collectively bargain, and to work together for "mutual aid and protection."

And in 2018, it was time for the Supreme Court to decide if these two laws were in conflict, and if employment contracts including a clause requiring employees to waive their right to resolve disputes through joint legal proceedings, and instead arbitrate their claims individually, were enforceable. But where employers and employees saw conflict, the Supreme Court found compatibility, ruling such clauses don't violate federal employment laws.

As housing costs soar and workers try to bring in more income, Californians who have been working as independent contractors may have to be re-categorized as employees thanks to a recent California Supreme Court ruling. The court's decision applies a standard used in a few other states, and could have a significant effect on "gig workers" such as Uber, Lyft, and Amazon delivery drivers.

Even cases that don't go a particular plaintiff's way can have larger and more positive ramifications for an entire community. Engineer Nicole Wittmer's claims against Phillips 66 -- that the energy company refused to hire her because she's transgender -- could be one of those cases.

Though a federal judge in Texas ruled that Wittmer lacked the evidence to prove discrimination in her particular case, the judge also ruled that federal employment law protecting workers from sex discrimination also applies to sexual orientation and gender identity. Meaning LGBT plaintiffs in other employment discrimination cases could benefit, even if Wittmer lost.

Many of us secretly wonder how much our colleagues make and whether or not we're being paid what we deserve. And if we're not paid the same, what's the justification for those pay differences? When a Fresno math consultant found out her male counterpart was paid more solely because he made more at his last job, she sued her employer. Now, a federal court has decided that prior salary cannot be used to justify a pay gap.

The minimum requirements for employers paying overtime pay are dictated by the Fair Labor Standards Act. The FLSA requires overtime pay for certain classes of employees and exempts others, including "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements."

But what about "service advisors"? Those car dealership employees, who, according to Supreme Court Justice Ruth Bader Ginsburg, "neither sell automobiles nor service (i.e., repair or maintain) vehicles ... Rather, they 'meet and greet [car] owners'; 'solicit and sugges[t]' repair services 'to remedy the [owner's] complaints'; 'solicit and suggest ... supplemental [vehicle] service[s]'; and provide owners with cost estimates"? Do they get overtime pay?

Not according to five of Justice Ginsburg's colleagues.

Employers are prohibited from discriminating against workers on the basis of sexual orientation. That's the ruling of the federal 2nd Circuit Court of Appeals, based in New York, which has held that such discrimination violates Title VII of the Civil Rights Act of 1964. It's a major decision that makes a potential Supreme Court decision on the matter more likely.

A decision out of a federal court in Pennsylvania last week is being heralded as a landmark ruling for the transgender community. Traditionally, transgender individuals have been excluded from protection under the Americans with Disabilities Act because being transgender is not a disability. However, this meant that certain medical conditions that are prominent in the transgender community, such as gender dysphoria, were also being excluded from protection under the ADA.

The Pennsylvania judge distinguished between these two exact issues when ruling that a transgender employee at a Cabela's could proceed under her ADA claim. While the case still needs to proceed with fact-finding, more motions, and potentially a trial, last week's ruling is groundbreaking. However, individuals should be careful to not regard transgender individuals as disabled unless the person actually has a disability.

A recent decision by the California Supreme Court settled a question of state labor law that the Ninth Circuit Court of Appeals needed resolved in order to rule on a pending federal appeal that turns on the application of state law.

The case stems from the labor disputes of two Nordstrom employees that allege the company violated California's Labor Code sections 551, 552, and 556 which govern the guaranteed "day of rest" each week to full time employees. The employees asserted that they had been forced to work more than 7 consecutive days without being provided the "rest day."

A lower federal court interpreted the California code sections to exempt employees if they work less than six hours on any one day of the week, which knocked out the case in the lower court. On appeal, the Ninth Circuit Court requested the state Supreme Court clarify the state law.

The Second Circuit Court of Appeals has upheld a National Labor Relations Board decision in favor of a wrongfully discharged employee. The story is making headlines due to the fact that the fired employee used a few choice phrases to describe his supervisor in a public Facebook post. Those choice phrases are of the type that most office workers would expect to result in immediate termination.

However, thanks to the laws prohibiting retaliation against employees engaged in pro-union activities, and the common sense of the NLRB and the court, the opprobrious comment qualified as protected pro-union speech. Though most of the Facebook post exclaimed profanities about this supervisor, there was a legitimate criticism and a call to action for people to vote to unionize. Thank goodness for this prolific employee that Facebook doesn't have a 140 character limit.

The Federal Court of Appeals for the Seventh Circuit issued an important ruling regarding a hotly contested issue: federal discrimination protections for LGBT employees. While many states already provide legal protections for LGBT employees who suffer discrimination based upon their sexual orientation, it is not a settled issue whether Title VII provides any protection.

The Seventh Circuit's ruling found that the protections for sex discrimination listed in Title VII do protect LGBT employees from discrimination based on their sexual orientation. While other courts have agreed with this interpretation of Title VII, several have not despite the fact that the federal Equal Employment Opportunity Commission has considered LGBT individuals to be protected since 2015.