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Managing the Modern Workplace
V&E International Labor & Employment Resources

Employers With Class Action Waivers in Arbitration Agreements Vindicated

As we have repeatedly discussed on the Managing the Modern Workplace blog, the fate of employers’ dispute resolution programs, and other arbitration clauses that include class and collective action waivers, has long hung in the balance. Today, in a 5-4 decision authored by Justice Gorsuch, the Court resolved the question of the enforceability of class and collective action waivers in favor of employers.

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Don't Be Surprised When an Employment Case Is SLAPP'ed

Consider a scenario that many in-house lawyers and HR professionals are all-too familiar with: an employee is terminated or leaves the company. After the employee’s departure, the company learns the employee has gone to work for a competitor, and after checking the employee’s computer, the company learns he plugged in a flash drive and downloaded files containing confidential information, including customer lists, just days before leaving. Under this scenario, the employee signed an employment agreement containing non-compete, non-solicit, and confidentiality provisions. 

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  • 19
  • April
  • 2018

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Title VII Protection for Transgender Status and Sexual Orientation

Several circuit courts — including, most recently, the Second Circuit in Zarda v. Altitude Express, Inc. — have decided whether sexual orientation and transgender status are protected characteristics under Title VII (we discussed one of those decisions here). Courts in our neck of the woods, however, have offered little guidance in this area so far. Although the Fifth Circuit (covering Texas, Louisiana, and Mississippi) has yet to weigh in on these issues, a Texas federal court recently issued the first decision in the state indicating that sexual orientation may be protected (Title VII’s applicability to transgender status has been considered by at least one Texas court to date).

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A Gig Economy Independent Contractor Checklist — For Now

A federal judge in California recently found that a restaurant delivery driver working for Grubhub was an independent contractor rather than an employee (and thus was not entitled to minimum wage, overtime, and expense reimbursement under California law). As a first-of-its-kind decision on the merits of the independent contractor analysis in the so-called “gig” or “sharing” economy, the decision presents a fairly comprehensive analysis of the traditional independent contractor analysis in this developing context. It’s important to recognize that there may be limits to the Grubhub case’s applicability to other new-economy companies because many of the judge’s determinations were based on the plaintiff’s lack of credibility. The decision is also likely to be appealed to the Ninth Circuit, which is typically not friendly to the gig economy. 

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Blowing the Whistle on Inadequate Reporting Policies and Procedures

As you may have heard, the Supreme Court decided last week that Dodd-Frank’s whistleblower protections (along with its 6-year statute of limitations and direct-to-court enforcement procedure) only extend to employees who have provided information about securities law violations to the SEC. This result may give a false sense of security to some employers who may wrongly conclude they can worry less about retaliation claims. In reality, however, the decision may encourage employees to go to the SEC first in order to gain the protections of Dodd-Frank and undermine the company’s ability to deal with potential compliance issues internally. Therefore, now more than ever, companies need to make sure that they have established procedures and policies that allow employees to make such complaints internally and a culture that encourages such internal reporting.

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Contributors

Thomas H. Wilson

Thomas H. Wilson Partner

Christopher V. Bacon

Christopher V. Bacon Counsel

Sean Becker

Sean Becker Partner

Stephen M. Jacobson

Stephen M. Jacobson Partner

Martin C. Luff

Martin Luff Counsel

Lawrence S. Elbaum Partner

S. Grace Ho

S. Grace Ho Counsel

Robert Sheppard

Robert Sheppard Associate