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Supreme Court Issues Pro-Employer Ruling on Class Action Waiver Issue

Ogletree Deakins • May 21, 2018
n May 21, 2018, the Supreme Court of the United States settled the contentious class action waiver issue that has riled courts for the past six years. In a 5-4 opinion, the Court upheld class action waivers in arbitration agreements. Relying heavily on the text of the Federal Arbitration Act (FAA) and “a congressional command requiring us to enforce, not override, the terms of the arbitration agreements before us,” the Court ruled that the FAA instructs “federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.” The Court also reasoned that neither the FAA’s savings clause nor the National Labor Relations Act (NLRA) contravenes this conclusion. Epic Systems Corporation v. Lewis, Supreme Court of the United States, Nos. 16–285, 16–300, 16–307 (May 21, 2018).

Epic Win: Supreme Court Saves Employment Arbitration As We Know It

Fisher Phillips • May 21, 2018
To the relief of employers across the country, the Supreme Court today ruled in a 5-to-4 decision that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act (NLRA) and are, in fact, enforceable under the Federal Arbitration Act (FAA). The decision in the three consolidated cases—Epic Systems Corporation v. Lewis; Ernst & Young, LLP v. Morris; and NLRB v. Murphy Oil USA, Inc.—maintains what had long been the status quo and halts the National Labor Relations Board’s (NLRB’s) crusade to invalidate mandatory class waivers. What do employers need to know about today’s monumental decision, and what adjustments can you make to capitalize on the Court’s ruling?

Supreme Court: Class Action Waivers in Employment Arbitration Agreements Do Not Violate Federal Labor Law

Jackson Lewis P.C. • May 21, 2018
Class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA), the U.S. Supreme Court has held in a much-anticipated decision in three critical cases. Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP et al. v. Morris et al., No. 16-300; National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307 (May 21, 2018).

ICE Worksite Enforcement Increases as Promised During Fiscal Year 2018

Littler Mendelson, P.C. • May 21, 2018
U.S. Immigration and Customs Enforcement’s former acting Director, Thomas Homan, indicated last fall that he wanted to quadruple worksite enforcement, and ICE is on track to do so. ICE recently announced it performed 3,510 worksite enforcement actions between October 1, 2017 and May 4, 2018. During the entire fiscal year of 2017, ICE conducted only 1,716 actions. ICE has also already performed 2,282 I-9 audits during fiscal year 2018, while performing only 1,360 audits during fiscal year 2017.

From Settlement Disclosures to Retaliation: A Summary of Sexual Harassment Legislation in 2018

Littler Mendelson, P.C. • May 21, 2018
After a tumultuous 2017, federal, state, and local governments have spent the start of 2018 reconsidering their approach toward sexual harassment in the workplace. While the federal government has focused on settlement and arbitration agreements, state governments have attempted a variety of techniques to address sexual harassment. States are considering legislation ranging from additional sexual harassment training, to protecting employees from retaliation when they are the victims of sexual harassment. This article discusses the new laws that seek to combat sexual harassment, as well as those legislative efforts that remain pending.

OFCCP Extends Moratorium on TRICARE Enforcement for Two More Years

Littler Mendelson, P.C. • May 21, 2018
On May 18, 2018, the U.S. Office of Federal Contract Compliance Programs (OFCCP) issued a directive ending uncertainty as to whether efforts to audit TRICARE participants will resume in 2019 and signaling an encouraging willingness to reconsider the agency’s prior positions on this issue. Directive 2018-02 announces a two-year extension of the current moratorium on enforcement of federal contractor obligations based on TRICARE participation through May 7, 2021.

Supreme Court Upholds Lawfulness of Class and Collective Action Waivers in Arbitration Agreements

Littler Mendelson, P.C. • May 21, 2018
The Supreme Court has weighed in: class and collective action waivers in arbitration agreements are lawful and must be enforced under the Federal Arbitration Act (FAA). The Court’s decision ends a circuit split and overturns the National Labor Relations Board’s (NLRB) position that class and collective action waivers violate employees’ rights under the National Labor Relations Act (NLRA). Ever since the NLRB’s 2012 decision in D.R. Horton, courts have wrangled with the enforceability of class action waivers and the interaction between the NLRA and the FAA. The Supreme Court’s decision in Epic Systems Corp. v. Lewis (Epic) brings an end to the dispute.1 In a 5-4 opinion authored by Justice Gorsuch, the Court held the FAA requires arbitration agreements to be enforced on the same grounds as any other contract, and the NLRA, which was enacted after the FAA, contains no contrary congressional command excluding class action waivers from the FAA’s mandate.

State Legislatures Heed the Obama White House’s “Call to Action”: Part 1 of a 3-Part Series Examining State-Level Restrictive Covenant Activity

Fisher Phillips • May 21, 2018
State legislatures across the country have been active in recent years proposing and enacting legislation concerning employers’ use of restrictive covenants. These new laws alter the legal landscape in an area where compliance was already difficult due to the vast differences between states. It is imperative that employers stay up-to-date on these changes. Accordingly, this will be the first of three posts addressing the recent wave of state-level legislative activity in this area that we have seen over the past year and a half.

Rhode Island Paid Sick and Safe Time Rules Raise as Many Questions as They Answer

Littler Mendelson, P.C. • May 21, 2018
On May 11, 2018, the Rhode Island Department of Labor and Training finalized regulations concerning the state’s mandatory paid sick and safe time law,1 the Healthy and Safe Families and Workplaces Act (HSFWA). The regulations clarify some issues like business size and pay rate calculations and fill some gaps left by the enacting statutes. Yet the regulations fail to provide sufficient clarification on certain issues and interpret some more common provisions in a novel way that may leave employers scratching their heads.
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