Executive Summary: On March 7, 2022, a sharply divided panel of the Second Circuit (covering New York, Connecticut, and Vermont) addressed the question of what a Title VII plaintiff must claim to adequately plead the existence of an employer-employee relationship under the joint employer doctrine. See Felder v. United States Tennis Association (2d Cir. 2022). Generally, a company is only liable for discrimination against employees and applicants for employment; however, if a company does not directly employ a person, it may be liable as a joint employer. Felder is the first time the Second Circuit has confronted the question of what factors must be alleged to adequately plead a joint-employment relationship. Over a vigorous dissent, the court joined its sister circuits and concluded that non-exhaustive factors drawn from the common law of agency, including control over an employee’s hiring, firing, training, promotion, discipline, supervision, and handling of records, insurance, and payroll, are relevant to this inquiry.
Archives for March 22, 2022
Jury Trial Waivers May be an Option for Employers in the Wake of the Ending Arbitration of Sexual Assault and Sexual Harassment Act
On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), amending the Federal Arbitration Act (FAA) to expressly prohibit mandatory pre-dispute arbitration agreements and pre-dispute joint-action waivers with regard to claims of sexual assault or sexual harassment. The Act applies to claims or disputes arising or accruing on or after March 3, 2022.
Ninth Circuit Rejects Enforcement of New Jersey Choice of Law and Non-Compete Agreement In Employment—The Importance of Being The First To File
In novel and important decision, DePy Synthes Sales v. Howmedica Ostionic’s, Ninth Cir. Case No. 21-55126, on March 14, 2022, the Ninth Circuit Court of Appeals upheld the lower court’s decisions to prevent a former employer from enforcing non-California forum selection clauses and a non-compete against its former California employee.
OFCCP Releases Notice of Proposed Rulemaking to Rescind Pre-Enforcement Notice and Conciliation Procedures
As anticipated, OFCCP has released its proposal to revise the Agency’s Rule on Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination. The final rule, published in November 2020, codified the used of The Predetermination Notice and the Notice of Violation as part of OFCCP’s enforcement
New EEOC Guidance Spotlights Caregivers in the Workplace
As the number of employees requesting flexible work arrangements increases, the Equal Employment Opportunity Commission has released a new technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law,” and an update to its COVID-19 “What You Should Know” to address employees and job seekers with
Proposed California Bill Would Give Minor League Baseball Players More Control Over Their Name, Image & Likeness
In the wake of a recent trial court decision finding that minor league baseball players are year-round employees, California State Senator Josh Becker has introduced legislation proposing that California enact the Minor League Baseball Players’ Bill of Rights.
Commenting on his proposed legislation Senator Becker stated, “I introduced Senate Bill (SB)
Disney CEO to Embark on Listening Tour After LGBTQ Bill Uproar
Chapek, heads of HR, diversity address staffers at town hall
Google settles with six employees who worked on unionization efforts.
Google has agreed to settle a National Labor Relations Board case filed by six former and current employees who said the company had illegally fired or disciplined them because of their unionization efforts.
The Great Resignation or the Great Rethink?
Many of us are considering our jobs with a fresh perspective.
Research: How Employee Experience Impacts Your Bottom Line
An examination of several years of employee and financial data from a global retailer found a substantial impact.
How To Combat The Great Resignation And Build A Resilient Workforce
The “do more with less” drive for continuous efficiency gains has reigned supreme since the Great Recession in 2008.
Dealing with workplace harassment: Ask Amy
Suddenly, he pulled me toward him and kissed me full on the lips.
The CROWN Act highlights years of workplace hair discrimination finally being legally reprehensible
The House of Representatives passed legislation on Friday, March 18, in a vote of 235-189, that would ban hair-related discrimination.
The future of work: What workplace trends are on the rise?
As we’re approaching better times ahead, employers are planning for the future of work. There are a lot of questions and conversations surrounding workplace trends and how organizations plan to move forward.
Management Innovator Presents A New Approach To Workplace Accountability
Accountability is foundational to the success of any relationship based on mutual good faith, and in the context of a workplace, will often make or break a company’s culture.