Law and the Workplace

Category Archives: Litigation and Arbitration

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Second Circuit: FAA Mandates Stay of Claims Pending Arbitration

By Evandro Gigante, Lindsey Chopin, Nigel F. Telman and Steven Hurd on Posted in Litigation and Arbitration
The Second Circuit recently held in Katz v. Cellco P’Ship d/b/a/ Verizon Wireless, Nos. 14-138, 14-291, 2015 WL 4528658 (2d Cir. July 28, 2015) that, under the Federal Arbitration Act (“FAA”), district courts must stay all proceedings upon a finding that the claims before the court are subject to arbitration if a stay is requested. … Continue Reading

Latest EEOC Discrimination Suit Targets Employment Exam

By Daniel Saperstein and Katharine Parker on Posted in Discrimination, Harassment and Retaliation, Litigation and Arbitration, Performance Management, Discipline & Termination, Workplace Policies and Procedures
For years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that certain employment tests and screening procedures can serve to discriminate against racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) when not “properly validated” as “job-related” and “consistent with business necessity” under the … Continue Reading

Colorado Supreme Court Okays Discharge of Medical Marijuana-Using Employee

By Daniel Saperstein and Katharine Parker on Posted in Discrimination, Harassment and Retaliation, Hiring/Background Checks, Litigation and Arbitration, Performance Management, Discipline & Termination, Workplace Policies and Procedures
Colorado, like some other states including New York, has a law that generally prohibits an employer from discharging an employee for engaging in lawful activities outside of work.  Earlier this week, in Coats v. Dish Network, No. 13SC394, the Colorado Supreme Court affirmed a lower court ruling that the state’s “lawful activities” statute does not … Continue Reading

NJ Businesses and Lawmakers Continue Debate over Municipal Sick Leave Laws

By Daniel Saperstein, Joseph O’Keefe and Kelly Anne Targett on Posted in Leaves of Absences, Litigation and Arbitration, Workplace Policies and Procedures
Controversy continues to stir over the growing number of municipal sick leave laws in the State of New Jersey.  To date, nine such localities—Bloomfield, East Orange, Irvington, Jersey City, Montclair, Newark, Passaic, Paterson and Trenton— have required employers to provide paid sick leave to their employees.  No other state in the nation has anywhere near … Continue Reading

U.S. Supreme Court Announces New Standard for Pregnancy Discrimination Claims

By Katharine Parker on Posted in Accessibility & Accommodation, Discrimination, Harassment and Retaliation, Litigation and Arbitration, Workplace Policies and Procedures
On Wednesday the U.S. Supreme Court issued its much-anticipated decision in Young v. United Parcel Service, Inc. (UPS), which involves a claim of pregnancy discrimination under the Pregnancy Discrimination Act (PDA). Young, a UPS driver, claimed that UPS intentionally discriminated against her by refusing to accommodate her pregnancy-related lifting restriction by transferring her to a … Continue Reading

Hawaii Supreme Court Says Employer Failed to Establish “Rational Relationship” Between Applicant’s Drug Conviction and Position Sought

By Daniel Saperstein and Katharine Parker on Posted in Discrimination, Harassment and Retaliation, Hiring/Background Checks, Litigation and Arbitration, Workplace Policies and Procedures
Hawaii, like some other states, only permits employers to consider convictions that bear a “rational relationship to the duties and responsibilities of the position.” Recently, the Hawaii Supreme Court had occasion to decide an issue that few other courts have addressed—the relationship of an applicant’s drug conviction to the job sought. In Shimose v. Hawaii … Continue Reading

Virginia District Court Rules that EEOC Cannot Issue Early Right-to-Sue Notice

By Evandro Gigante and Jacquelyn Weisman on Posted in Litigation and Arbitration
On February 24, 2015, the District Court for the Western District of Virginia dismissed a pregnancy discrimination lawsuit because the Equal Employment Opportunity Commission (“EEOC”) prematurely issued a “right-to-sue” notice, giving the plaintiff permission to file a lawsuit in court before she was allowed to do so under the law. In Taylor v. Cardiology Clinic, … Continue Reading

EEOC Background Check Litigation Strategy Criticized

By Katharine Parker on Posted in Discrimination, Harassment and Retaliation, Hiring/Background Checks, Litigation and Arbitration
Readers who have been following the EEOC’s efforts to prosecute employers who conduct background checks will be interested in the Wall Street Journal’s editorial, “Hit Us Again, Harder.”  The paper praises Freeman Co. for standing up to the EEOC and defending its background check processes, pointing out the EEOC’s repeated failure to present credible evidence … Continue Reading

Third Circuit Nixes EEOC Retaliation Suit

By Daniel Saperstein, Joseph O’Keefe and Matthew Engel on Posted in Discrimination, Harassment and Retaliation, Independent Contractor, Litigation and Arbitration, Workplace Policies and Procedures
Last week, in Equal Employment Opportunity Commission (“EEOC”) v. Allstate Insurance Co., No. 2-01-cv-07402 (3d Cir. Feb. 13, 2015), the Third Circuit affirmed that the defendant did not violate federal anti-retaliation laws by offering thousands of terminated at-will employees the opportunity to continue working as independent contractors in exchange for signing a release. By way … Continue Reading

Fourth Circuit Affirms Summary Judgment against EEOC in Background Check Suit

By Daniel Saperstein and Katharine Parker on Posted in Hiring/Background Checks, Litigation and Arbitration, Workplace Policies and Procedures
Last week, in Equal Employment Opportunity Commission (“EEOC”) v. Freeman, No. 13-2365 (4th Cir. Feb. 20, 2015), the Fourth Circuit affirmed the award of summary judgment against the EEOC in its suit alleging that the defendant’s use of credit and criminal background checks had a “disparate impact” on African-American job applicants in violation of Title … Continue Reading

N.J. High Court Adopts Faragher-Ellerth Defense for LAD Sexual Harassment Claims

By Daniel Saperstein, Joseph O’Keefe and Nicholas M. Tamburri on Posted in Discrimination, Harassment and Retaliation, Litigation and Arbitration, Workplace Policies and Procedures
Last week, in Aguas v. New Jersey, No. A-35-13 (Feb. 11, 2015), New Jersey’s high court for the first time embraced the federal Faragher-Ellerth defense for claims alleging vicarious liability for supervisory sexual harassment under New Jersey’s Law Against Discrimination (“LAD”). Under the Faragher-Ellerth analysis—which the U.S. Supreme Court crafted almost two decades ago—an employer may … Continue Reading

NJ Supreme Court Hears Argument on Whether Disgorgement of Employee’s Salary Requires Economic Damages

By Daniel Saperstein, Ian Plummer and Joseph O’Keefe on Posted in Litigation and Arbitration, Wage and Hour
In Kaye v. Rosefielde, a case alleging fraud and malpractice against a former general counsel, the New Jersey Supreme Court recently heard oral arguments on whether the Appellate Division erred in affirming that economic damages are a necessary prerequisite for disgorgement of the general counsel’s salary.  The appellants have argued to the contrary that disgorgement … Continue Reading

NJ Supreme Court Considers Remittitur of Emotional Distress Award in Race Discrimination Case

By Daniel Saperstein, Ian Plummer and Joseph O’Keefe on Posted in Discrimination, Harassment and Retaliation, Litigation and Arbitration
The New Jersey Supreme Court has agreed to address whether a trial court erred in denying remittitur on a whopping $1.4 million award for emotional distress damages in a racial discrimination suit brought under the Law Against Discrimination.  The defendants had argued before the trial court and the appellate division that the award “shocks the … Continue Reading

Anti-Discrimination and Anti-Retaliation Policies Save Employer from $3.5 Million Punitive Damages Award

By Evandro Gigante and Kristine Huggins on Posted in Discrimination, Harassment and Retaliation, Litigation and Arbitration, Workplace Policies and Procedures
On January 7, 2015, the U.S. District Court for the District of Puerto Rico issued an opinion overturning a jury’s $3.5 million punitive damages award for retaliation claims brought under Title VII and Puerto Rico law, finding that the defendant employer had demonstrated that it had made good faith efforts to implement anti-discrimination and anti-retaliation … Continue Reading

The Top 10 Trends in New Jersey Employment Law in 2014

By John Barry, Joseph O’Keefe, Matthew Engel and Daniel Saperstein on Posted in Accessibility & Accommodation, Discrimination, Harassment and Retaliation, Hiring/Background Checks, Leaves of Absences, Litigation and Arbitration, Performance Management, Discipline & Termination, Wage and Hour, Workplace Policies and Procedures
2014 was another busy year for developments in New Jersey employment law, including in ten key areas—whistleblowing, pre-employment inquiries/background checks, amendments to the Law Against Discrimination (“LAD”), LAD litigation, wage and hour, the Family Medical Leave Act, sick leave, states of emergency, arbitration, and “unemployment discrimination.”  Read our Top 10 newsletter to learn more about … Continue Reading

Background Checks Headline in 2014

By Daniel Saperstein and Katharine Parker on Posted in Discrimination, Harassment and Retaliation, Hiring/Background Checks, Litigation and Arbitration, Workplace Policies and Procedures
In 2014, background checks were a hot topic in state and local legislatures.  Before this year, only 8 jurisdictions in the country had passed laws preventing private employers from asking job candidates about their criminal histories on an employment application (i.e., “banning the box”).  This year alone, however, 9 jurisdictions enacted ban-the-box laws covering private … Continue Reading

In The Eleventh Circut, Employers Can Terminate “Protected” Employees For Poor Performance And Violation Of Company Policy

By Allan Weitzman and Jurate Schwartz on Posted in Discrimination, Harassment and Retaliation, Leaves of Absences, Litigation and Arbitration, Performance Management, Discipline & Termination, Workplace Policies and Procedures
On December 4, 2014, the U.S. Court of Appeals for the Eleventh Circuit upheld summary judgment in favor of an employer against a pregnant employee who had requested FMLA, who was told by her direct supervisor “that [her] pregnancy was affecting [her] effectiveness” and who had complained about this to the employer’s Ethics Hotline. In … Continue Reading

Senate HELP Committee Issues Scathing Report on EEOC

By Katharine Parker on Posted in Discrimination, Harassment and Retaliation, Litigation and Arbitration
EEOC sealToday the Republicans on the Senate Committee on Health, Education, Labor and Pensions issued a Minority Staff Report entitled, “EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities, and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency.”  The report details a host of criticisms of the EEOC, finding, among other things that: EEOC’s Office … Continue Reading

Fifth Circuit Refuses Application of Bright-Line Test in FLSA Seaman Exemption Dispute

By Lindsey Chopin and Nicole Eichberger on Posted in Litigation and Arbitration, Wage and Hour
On November 13, 2014, the Fifth Circuit handed down its opinion in Coffin v. Blessey Marine Services, Inc., No. 13-20144, 2014 WL 5904734 (5th Cir. Nov. 13, 2014).  The opinion addressed several key factors related to the FLSA’s seaman exemption: Finding that unloading and loading of vessels is not strictly “nonseaman” work; Limiting its prior … Continue Reading

Second Circuit Allows After-Acquired Evidence to Support Termination Decision

By David Reid and Evandro Gigante on Posted in Discrimination, Harassment and Retaliation, Litigation and Arbitration
On October 9, 2014, the United States Court of Appeals for the Second Circuit, in a summary order, affirmed a district court’s admission of evidence at trial of a former employee’s misconduct, discovered after the employee’s termination, to support the employer’s reason for discharging the employee.  Weber v. Fujifilm Medical Systems USA, Inc., et al., … Continue Reading

U.S. Supreme Court Considers Whether Employees Must Be Paid for Time Spent In Security Screenings

By Daniel Davis on Posted in Litigation and Arbitration, Wage and Hour
The U.S. Supreme Court heard oral argument today in Integrity Staffing Solutions, Inc. v. Busk.  The issue is whether employees must be paid for their time going through a security screening and waiting in line to be screened.  The U.S. Court of Appeals for the Ninth Circuit said employees should be paid for their time.  … Continue Reading

Judge Limits In-House Attorney Privilege in MasterCard Ruling

By Evandro Gigante, Jenna Hayes, Keisha-Ann Gray and Katharine Parker on Posted in Litigation and Arbitration
On August 25, 2014, Magistrate Judge Sarah Netburn of the Southern District of New York issued an order compelling MasterCard to produce several documents that the company had previously identified as privileged. The plaintiff in the ongoing contract dispute, International Cards Company, Ltd., challenged MasterCard’s privilege log, which led Judge Netburn to instruct MasterCard to … Continue Reading

New Jersey Court Okays Provision in Job Application Reducing Statute of Limitations

By Daniel Saperstein and Joseph O’Keefe on Posted in Discrimination, Harassment and Retaliation, Litigation and Arbitration, Workplace Policies and Procedures
In Rodriguez v. Raymours Furniture Co., Inc., No. A-4329-12T3, 2014 WL 2765273 (App. Div. June 19, 2014), New Jersey’s Appellate Division upheld a provision in a job application that limited the time in which an employee could sue the company to no more than six months after an alleged adverse employment action. This is the … Continue Reading

Third Circuit Embraces “Lower Bar” for Successor Liability under the FLSA

By Allison Martin, Daniel Saperstein, Joseph O’Keefe and Robert Schwartz on Posted in Litigation and Arbitration, Wage and Hour
In Thompson v. Real Estate Mortgage Network, the Third Circuit adopted a standard of successor liability that will lower the bar for whether an employer can be held accountable under the Fair Labor Standards Act for the wage and hour violations of its predecessor. Read this alert to learn more about the decision.   Read … Continue Reading
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