Employment Law Watch

Analysis and commentary by Reed Smith attorneys on developments in employment and labor law

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On March 21, 2019, the full en banc U.S. Court of Appeals for the Eleventh Circuit clarified that in order to establish a prima facie case of workplace discrimination through alleged preferential treatment of a comparator outside the plaintiff’s protected class, a plaintiff must show that the alleged comparator is “similarly situated in all material respects.” The opinion clarifies the “similarly situated” standard in discrimination cases and may assist employers in obtaining summary judgment, particularly…
On March 18, 2019, New Jersey Governor Phil Murphy signed new legislation (S121) that significantly impacts the scope of certain employment agreements and settlement agreements between employers and employees/former employees. The controversial legislation addresses the following: Ban on waiver of substantive and procedural rights in employment contracts related to discrimination, harassment or retaliation claims The legislation voids any provision in an employment contract that waives “any substantive or procedural right or remedy relating to a…
On February 19, 2019, the New York City Commission on Human Rights (NYCCHR) issued new enforcement guidance regarding (1) policies that place restrictions, or ban, naturally curly hair, dreadlocks, braids and cornrows, among other hairstyles; or (2) neutral grooming policies that are discriminatorily applied to employees based on aspects of their appearance associated with race. In its guidance, the NYCCHR emphasized that the New York City Human Rights Law (NYCHRL) “protects the rights of New…
On February 19, 2019, Illinois Governor J.B. Pritzker signed into law a proposed bill to increase the state’s minimum wage to $15 per hour by 2025. The bill, known as “Lifting Up Illinois Working Families Act,” sets incremental increases to the state’s hourly minimum wage for employees 18 years or older as follows: (i) $9.25 on January 1, 2020; (ii) $10 on July 1, 2020; and (iii) $11 on January 1, 2021. Starting on January…
On February 6, 2019, the Fifth Circuit affirmed summary judgment in favor of an employer on claims that it discriminated against the plaintiff based on her transgender status. In Wittmer v. Phillips 66 Company, the plaintiff sued Phillips 66 Company for sex discrimination under Title VII in the Southern District of Texas, claiming that the company rescinded her offer of employment after learning she was transgender. The District Court granted the company’s motion for summary…
In a recent decision involving retail store employees, the Second Appellate District Court held that employees subject to on-call scheduling must be paid reporting time pay, even when the employee only has to make a short call to determine if they are needed, but does not physically report to work. The case, Skylar Ward v. Tilly’s Inc., Case Number B280151, involved a putative class action complaint filed by Plaintiff Skylar Ward (Plaintiff), a former sales…
California has long been known as a state that bans post-employment non-compete and customer non-solicitation agreements for its employees, absent very limited exceptions related to the sale of a business and trade secret protection. Employee non-solicitation provisions were believed to be the last post-employment restrictive covenant that California law still generally allowed, assuming they were properly drafted. Now, because of two recent California court decisions, even inclusion of limited employee non-solicitation provisions needs to be…
On January 31, 2019, the three-member National Mediation Board (NMB), which oversees labor relations for the airline and railroad industries, published a proposed rule-making to simplify the process for workers covered by the Railway Labor Act (RLA) to decertify the unions representing them. Currently, RLA-represented employees seeking to decertify a union must identify an individual willing to be personally named and represent the bargaining unit. After more than 50 percent of the unit’s members sign…
In Amaya v. Ballyshear LLC, et al., a case before a New York Federal District Court, Nelly Amaya, a Long Island resident, alleged that her former employers engaged in unlawful discrimination and retaliation, in violation of the New York City Human Rights Law (NYCHRL). Amaya’s employers argued that Amaya failed to show that their alleged conduct had an “impact” on her within the confines of New York City. At the time of the alleged conduct,…
In a recent decision involving SuperShuttle drivers, the National Labor Relations Board (NLRB or Board) overruled a 2014 decision making it less likely a worker would be deemed an independent contractor, returning to the more employer-friendly common law test to determine independent contractor status. In 2014, the Board purported to clarify the standard for evaluating whether a worker is an independent contractor (see FedEx Home Delivery, 361 NLRB 610 (2014)). In FedEx, the Board articulated…