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Winter Storms Raise a Blizzard of Questions for Employers

Executive Summary: Almost a year ago, a series of winter storms blasted the country, costing billions in damages and business disruption. Yesterday, businesses and residents in the country's Northeast Corridor again braced for what some predicted would be a blizzard of "historic proportions," expected to dump at least three feet of snow from northern New Jersey to southern Maine.

Another employer pays for “Sorry, I can’t go”

Last October, I posted about a consent decree entered into between Wal-Mart and the Equal Employment Opportunity Commission, in which Wal-Mart agreed to pay $72,500 to candidate for a store job in Maryland whose offer was withdrawn because she couldn’t undergo a urine test for drugs.

U.S. Supreme Court Supports Whistleblower Claim of Employee Fired for Leaking Sensitive Information

Strictly construing the Whistleblower Protection Act (“WPA”) against the employer (here, the government) and in favor of the employee, the U.S. Supreme Court has ruled a federal air marshal’s whistleblower claim may proceed even though he had leaked confidential air security plans to the media in apparent violation of a regulation. Department of Homeland Security v. MacLean, No. 13- 894 (U.S. Jan. 21, 2015). The Court was not swayed by the government’s effort to broadly interpret an exception the WPA as excluding the employee from whistleblower protection.

President Outlines "Middle-Class Economics" Narrative in SOTU

During last night's State of the Union address, President Obama touched on a number of employment and benefits-related topics that fit into his theme of promoting "middle-class economics." Although it is up to the new Congress to act on any of the President's proposals, the list of potential initiatives indicates the Administration's priorities over the remaining two years of this presidency. President Obama noted that in two weeks he would submit his budget to Congress embodying these priorities, and intends to "crisscross the country making a case for those ideas."

Whistleblower Protection Extends To Federal Workers Who Violate Agency Regulations

Today the U.S. Supreme Court held that an agent of the Transportation Security Administration (TSA) who disclosed information that was prohibited by TSA regulations, was nonetheless protected under the Whistleblower Protection Act. The Court’s reasoning centered around the fact that “regulations” are not “laws.” DHS v. MacLean.

PAGA Representative Claims Remain Alive After SCOTUS Denies Iskanian Review

This morning, the Supreme Court of the United States declined review of a state supreme court case that has sparked widespread flux in the landscape of class action arbitration waivers in California. In Iskanian v. CLS Transportation Los Angeles, LLC, S204032 (June 23, 2014), the Supreme Court of California had ruled on the issue of whether the Federal Arbitration Act (FAA) preempts California’s policy against enforcement of class action waivers on the grounds that such waivers were contrary to public policy or unconscionable. Last summer, the state’s highest court held that the California policy was preempted by the FAA. But the California Supreme Court refused to find that the FAA preempted rephresentative action waivers as applicable to the Labor Code Private Attorneys General Act of 2004 (PAGA). As a result, under the California Supreme Court’s decision, while arbitration agreements can prohibit employees from bringing class actions, employees can still bring representative actions pursuant to PAGA and an arbitration agreement containing a waiver of PAGA representative actions is not enforceable. The United States Supreme Court’s decision means that the California Supreme Court’s decision is still good law.

Supremes Leave PAGA Representative Claims Intact

Executive Summary: On January 20, 2015, the U.S. Supreme Court denied review of CLS Transportation Los Angeles, LLC v. Iskanian ("Iskanian"), a case which would have determined whether employees in California could continue to bring representative claims, despite the existence of arbitration agreements with mandatory class/representative action waivers. Companies operating in California may now need to rethink their use of arbitration agreements in light of the U.S. Supreme Court's ruling.

Employment Law Blog Carnival: Awards Season Edition

If you missed the Golden Globes, and you can’t wait for the Oscars or the Razzies, you always have the Employment Law Blog Carnival for January! As your fearless emcee, let me first thank the #ELBC family for letting me host this month. You have no idea what you have done are kind, and I am honored to introduce blogdom to the best of what we have been writing this past month. Let’s get started!

Thumbs Down to Insubordination on Facebook

The Board recently decided two employees’ otherwise protected posts about their employer on Facebook crossed the line and lost the Act’s protection.

A Commitment to Diversity in Practice Versus in Theory—Interview of Mel Jones, Skanska

Mel Jones is Northwest Diversity Manager for Skanska USA, a multibillion dollar international building and development company. Before joining Skanska, Jones was a civil engineer and owned his own engineering design company. As an African American business owner, Jones experienced the subtle-yet-real vestiges of race discrimination—quiet exclusion, “accidental” omission on project bid invitations, and specious excuses for opportunities denied.
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