An employee who refused to stop using morphine and would not engage in the interactive process with his employer could not survive summary judgment on his disability discrimination and retaliation claims under the Americans with Disabilities Act. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).
Massachusetts Attorney General’s Office Publishes Guidance On Pay Equity Law
Today, the Massachusetts Attorney General’s office published its long-awaited guidance on Massachusetts’ new pay equity law, which is effective July 1, 2018. The guidance addresses a number of frequently asked questions and further provides guidance for employers on conducting “self-evaluations” of pay practices. A link to the Attorney General’s guidance is found here. Jackson Lewis attorneys are reviewing the guidance and will publish a more detailed analysis shortly.
USCIS Revises Its Mission Statement
The new USCIS mission statement, issued on February 22, 2018, by Director L. Francis Cissna, no longer emphasizes customer satisfaction, i.e., the satisfaction of petitioners and beneficiaries. Instead, it focuses on serving the American people and making sure that benefits are not provided to those who do not qualify or those who “would do us harm. . . .”
California Court of Appeals Holds Labor Code § 558 Claims Are Indivisible Claims and Not Arbitrable
In Lawson v. ZB, N.A. (2018) 18 Cal.App.5th 705, California’s Fourth District Court of Appeal recently ruled that the two elements comprising damages under Labor Code § 558 – (a) underpaid wages and (b) denominated assessments – are indivisible. Because a claim under Labor Code § 558 is indivisible and it is a civil penalty encompassed by the California Private Attorneys General Act (“PAGA”), the entire claim under Labor Code § 558 is not subject to any arbitration agreement between an employee and an employer, even if the employee waived his or her right to bring a class or representative claim against his or her employer.
Is Employee Consent under EU Data Protection Regulation Possible?
U.S. organizations that control or process the personal data of European Union residents likely are subject to the EU’s new data protection requirements, the General Data Protection Regulation (GDPR). The GDPR takes effect on May 25, 2018.
Title VII Bars Discrimination Based on Sexual Orientation, Second Circuit Rules
In a much-anticipated decision, the federal appeals court in New York has held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an individual’s sexual orientation. Zarda v. Altitude Express, No. 15-3775 (2d Cir. Feb. 26, 2017).
Pending California Legislation Alert! Recently Introduced Bill Seeks to Protect Medicinal Marijuana Users from Employment Discrimination in California
Although both medicinal and now recreational consumption of marijuana have been legalized in California, this legalization did not impact an employer’s right to discipline or even terminate employees for marijuana use. That could change for medical marijuana users if a bill pending before the California legislature becomes law.
ICE Sweeps California, Increases Enforcement Nationwide
Following California Governor Jerry Brown’s signing of sanctuary laws in October 2017, the state has been targeted for a major ICE sweep to arrest undocumented individuals. ICE Director Thomas Homan stated that because California’s sanctuary laws nearly eliminate all cooperation with state law enforcement partners, ICE actions “will inevitably result in additional collateral arrests, instead of focusing on arrests at jails and prisons where transfers are safer for ICE officers and the community.”
NLRB Vacates Hy-Brand Joint Employer Decision Following Inspector General Report
In a surprising reversal, the NLRB on February 26, 2018, vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), and restored the Board’s union-friendly joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015) which Hy-Brand had overruled.
Changes to VCP User Fees: A Holiday Gift That Some Plan Sponsors Would Rather Return
Benefit plan practitioners returned to their desks after the holidays to the surprising news that the Internal Revenue Service issued guidance that made sweeping changes to the user fees for the Internal Revenue Service’s Voluntary Correction Program (“VCP”). (And notably more than one IRS agent has informally indicated they were surprised by the changes, which were almost immediately effective, as well!)
Foreign Parent Company is Joint Employer with Subsidiary for Employment Claims, Court Rules
The employee brought claims against his former employer, Teva USA, and its parent company, Teva Israel, alleging violations of the Age Discrimination in Employment Act, Title VII of the Civil Rights Act, and the Pennsylvania Human Relations Act. The court found that the Israeli parent company “exercises significant control” over their U.S.-based subsidiary’s employees such that it qualifies as a joint employer.
Multi-Million Dollar Nationwide Class Settlement Vacated by Ninth Circuit
In a “major blow to multistate class actions,” according to the dissenting opinion in Espinosa v. Ahearn (In re Hyundai & Kia Fuel Econ. Litig.) 2018 U.S.App.LEXIS 1626 (January 23, 2018), the Ninth Circuit vacated a class action settlement after more than six years of litigation.
How to Calculate New Federal Paid Family Leave Tax Credit
Under new Section 45S of the Internal Revenue Code, employers that voluntarily offer qualifying employees up to 12 weeks of paid family and medical leave annually pursuant to a written policy may claim a tax credit for a portion of the wages paid during leave. The leave benefit must satisfy the requirements in Section 45S.
Rescission of H-4 Employment Authorization Documents (EADs) Expected
The DOJ and the DHS have made clear on numerous occasions that they intend to rescind employment authorization documents (EADs) for H-4 visa status holders and it appears that rescission may be just around the corner. Family members of an H-1B worker are admitted in the H-4 category.
U.S. Supreme Court Narrows Dodd-Frank Act Whistleblower Protections
The anti-retaliation provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 protects only employees who complain directly to the Securities and Exchange Commission (SEC), the U.S. Supreme Court has held in a unanimous decision. Digital Realty Trust, Inc. v. Somers, No. 16-1276 (Feb. 21, 2018).