Executive Summary: An employer hiring an individual known to be subject to a non-compete contract can expect to be accused of tortiously interfering with that contract. On the other hand, the hiring employer should be innocent of wrongdoing if it has no idea the new hire is bound by a restrictive covenant. In Acclaim Sys. v. Infosys, Ltd., 2017 U.S. App. LEXIS 2325 (3d Cir. 2017), the Third Circuit recently affirmed this common-sense approach by holding an employer lacking actual knowledge of a restrictive covenant cannot be liable for tortious interference with that covenant.
Lawsuits Challenging OSHA Rule Halted as OSHA Reconsiders Rule
Executive Summary: In May 2016, the Occupational Safety and Health Administration (OSHA) promulgated the Record Keeping Modernization Rule (the Rule) which required certain employers to submit injury and illness data electronically and specifically prohibited employers from retaliating against employees for reporting an injury or illness. We discussed the Rule in our June 20 and November 30, 2016 Alerts.
Georgia’s New Kin Care Law: Who is Covered and What It Means for Employers
Overview: On May 8, 2017, Georgia Governor Nathan Deal signed Senate Bill 201, now known as Act 203, into law. The law went into effect on July 1, 2017. In short, the new law requires covered employers, who provide paid sick leave to employees, to allow those employees to use some sick leave to care for immediate family members. The law does not create a new cause of action, which means an employee cannot bring a private suit against her or his employer under the new law.
Eleventh Circuit Sets the Stage for U.S. Supreme Court Certification on Whether Sexual Orientation is Protected by Title VII
Executive Summary: On March 10, 2017, in Evans v. Georgia Regional Hospital, a split panel of the U.S. Court of Appeals for the Eleventh Circuit held that it was bound by prior precedent that Title VII of the Civil Rights Act of 1964 does not prohibit sexual orientation discrimination. The majority opinion was clear that only a ruling from the Eleventh Circuit sitting en banc could change the state of the law on this issue. Evans moved for reconsideration en banc. The Eleventh Circuit denied the request on July 6, 2017. The Circuits are now split on the issue, providing an opportunity for the U.S. Supreme Court to definitely decide the issue.
Tenth Circuit Rules Employer That Pays More Than Minimum Wage Does Not Have to Share Customers’ Tips With Employees
Executive Summary: On June 30, 2017, the U.S. Court of Appeals for the Tenth Circuit ruled in Marlow v. The New Food Guy, Inc. d/b/a Relish Catering (Relish) that neither the Fair Labor Standards Act (FLSA) nor a Department of Labor (DOL) regulation requires an employer to share customers’ tips with employees so long as the employees are paid more than minimum wage.
Florida Enacts Law to Implement Provisions of its Medical Marijuana Amendment, but Significant Questions Remain for Employers
Executive Summary: Late last week Florida Governor Rick Scott signed into law a bill intended to implement provisions of the medical marijuana constitutional amendment that was approved by Florida voters last November (Amendment 2).
DOL’s Revival of Opinion Letters and Request for Input on Overtime Rules Welcome News for Employers
Executive Summary: The U.S. Department of Labor (DOL) has announced that it will return to the practice of issuing Opinion Letters in response to inquiries from businesses regarding federal wage and hour issues, a practice abandoned under the prior administration. The DOL has also taken affirmative steps to seek additional public comment on the overtime rules proposed last year, the legality of which is currently being challenged in federal court. Both developments should be welcome news to employers, as they signal that the Department will likely provide more guidance to businesses with respect to compliance under the FLSA and that it may be taking steps towards revising the proposed overtime rules.
Calendar Year Plans Need to File Form 5500 by Monday, July 31, 2017
Executive Summary: The Form 5500 is an annual report that must be filed for every employee benefit plan that covers 100 or more participants. For calendar year plans, these forms must be filed by July 31, 2017.
Major Headaches Coming for Chicago and Cook County Employers When Implementing Paid Sick Leave Ordinances
As most employers in the “Chicagoland” area are hopefully already aware, both Chicago and Cook County have enacted paid sick leave (PSL) ordinances that go into effect July 1, 2017.
NYC Enacts “Fair Work Week” Laws for Retail and Fast Food Employees
Executive Summary: New York City’s new package of “Fair Work Week” laws, which go into effect on November 27, 2017, will create new and burdensome scheduling and record-keeping requirements for retailers and fast food establishments, including an obligation to pay a “schedule change premium” to fast food employees. Select highlights of the new laws are explained further below.
Supreme Court Decision Offers Some Relief to Church-Affiliated Nonprofits Using ERISA Church Plan Exemption
Executive Summary: The U.S. Supreme Court’s decision in Advocate Health Care Network v. Stapleton serves as a reminder to church-affiliated hospitals and other organizations using the ERISA church plan exemption to review the basis for their plans’ exemptions and their plan governance structures.
New Florida Law Addresses Status of Workers and Other Issues in Ride-Sharing Industry
Executive Summary: As the sharing economy continues to gain popularity with workers, businesses, and consumers by offering increased job flexibility and consumer choice, courts and regulatory agencies have struggled with how to fit this new “virtual” workforce into a legal framework originally established to protect those employed in a traditional brick and mortar environment. A primary point of contention has been whether these workers should be classified as employees or whether they are properly treated as independent contractors. The Florida Legislature recently addressed this issue in the transportation industry by enacting a statute that will permit transportation network companies (TNCs) to lawfully classify their drivers as independent contractors for the purposes of Florida law if they meet the statute’s requirements.
During Last Week of School Seventh Circuit Rules in Favor of Transgender Teen On Restroom Use
Executive Summary: On May 30, 2017, on the heels of the Seventh Circuit’s ground-breaking en banc decision in Hively v. Ivy Tech. College holding that sexual orientation is a protected trait under Title VII, a unanimous three-judge panel of that Circuit upheld an injunction requiring a Wisconsin school district to allow a transgender student whose sex assigned at birth was female and who now identifies as male to use the boys’ restroom. In Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit ruled that under the gender non-conformity/sex stereotyping theory of liability as set out by Price Waterhouse v. Hopkins and its progeny, Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibit a school from barring a transgender student from using the bathroom that corresponds to his or her gender identity.
Full Second Circuit to Revisit Its Position On Sexual Orientation as a Protected Class Under Title VII
Executive Summary: While the Seventh Circuit definitively has held that sexual orientation discrimination is discrimination “because of sex” and, therefore, a violation of Title VII of the Civil Rights Act of 1964, as amended (as reported by these authors on April 25, 2017), the other Circuits continue to debate this issue. Specifically, (as previously reported by these authors on April 3, 2017), the Second Circuit in Christiansen v. Omnicom and Eleventh Circuit in Evans v. Georgia Regional Hospital held they were bound by prior precedent that sexual orientation is not protected by Title VII, despite their skepticism as to whether that precedent remains good law.
Non-Compete News: Using Defend Trade Secrets Act, California Court Stops Deletion of Misappropriated Confidential Information
Executive Summary: Having just celebrated its one-year anniversary, the Defend Trade Secrets Act (DTSA) triggered an uptick in federal litigation concerning the fight to protect corporate trade secrets. Though no court has issued the elusive ex parte civil seizure remedy which the Act allows, one recent decision came close. In OOO Brunswick Rail Mgt. v. Sultanov, 2017 WL 67119 (N.D. Cal. Jan. 6, 2017), the U.S. District Court for the Northern District of California used the DTSA to bar an individual defendant from accessing or modifying a laptop and cell phone received from his former employer, and to compel non-parties Google and Rackspace to preserve both individual defendants’ web-based email accounts.