In June, new laws will go into effect that restrict employers’ ability to request and use criminal history information about applicants in three jurisdictions: Kansas City, Missouri; the State of Washington; and the city of Spokane, Washington. Below are summaries of the new restrictions and links to the laws. Continue Reading June Will Bring New Ban the Box and Fair Chance Laws

Last week, the United States Court of Appeals for the Second Circuit, sitting en banc, became the second federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation. The Court’s decision in Zarda v. Altitude Express follows on the heels of the Seventh Circuit’s decision last April in Hively v. Ivy Tech Community College of Indiana, in which the Seventh Circuit also overturned its prior cases to recognize protections based on sexual orientation under Title VII. Continue Reading Circuit Courts Recognize Employment Protections for Sexual Orientation Under Title VII

Recently, President Trump announced that he sent names of four nominees to serve as commissioners on the five-member Federal Trade Commission (“FTC”) to the Senate for approval. If all four of the nominees are confirmed, it will still leave one remaining vacant seat on the FTC, which has been operating as a bipartisan two-member interim agency since early last year. The nominees, three of whom were announced last fall, consist of three Republicans—Joseph Simons, Noah Phillips and Christine Wilson—and one Democrat, Rohit Chopra. Continue Reading President Trump Sends Four FTC Nominees to Senate for Approval

On August 2, 2017, the U.S. Senate confirmed one of President Trump’s two management-side appointees, Marvin Kaplan, to the National Labor Relations Board (“NLRB”) in a contentious vote along party lines. Kaplan was sworn in on August 10, 2017, for a term ending on August 27, 2020.  Continue Reading NLRB No Longer Controlled by Labor Union Appointees

If you are a retailer, you may have policies and procedures in place regarding who can speak on behalf of your company. Such policies may generally instruct employees not to speak to the press as a representative of the company, and to direct all media inquiries to a particular person or department. Similarly, if you are a retailer, you may have a policy in place that instructs employees to forward any reference requests to your human resources department. These commonplace policies allow retailers to control their public image and protect employee privacy, among other benefits. But, according to a recent decision by a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”), such policies may violate the National Labor Relations Act (“NLRA”) by interfering with, restraining or coercing employees in their right to engage in concerted activity. Continue Reading ALJ Says Company’s Neutral Reference and Press Inquiry Policies Violate NLRA

The Second Circuit recently held that Rite-Aid lawfully fired a long-tenured pharmacist after he refused to comply with the company’s new mandate that pharmacists must administer immunizations. The court’s decision overturned a jury verdict of $2.6 million in the pharmacist’s favor and reminds employers what it takes to show that a given function is “essential” and what accommodations are reasonable. The former pharmacist had claimed Rite-Aid illegally discharged and retaliated against him, and refused to accommodate his disability—trypanophobia, or needle phobia—under the Americans with Disabilities Act and similar state law. Continue Reading Second Circuit Says Firing Disabled Worker Was Lawful

On March 6, 2017, an NLRB administrative law judge (“ALJ”) issued a ruling finding that a nonunion automotive manufacturing facility in Alabama violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it terminated three employees who walked off the job over a holiday-season scheduling dispute. The ALJ found that the employees were engaged in protected concerted activity despite the fact that they denied discussing the decision to leave work before their shifts had ended. Continue Reading Another Step in the NLRB’s Mission to Expand Definition of “Concerted Activity” under the NLRA

On January 25, 2017, Victoria Lipnic was appointed acting chair of the Equal Employment Opportunity Commission (“EEOC”), and members of the legal community believe that her appointment could move the EEOC in a more management-friendly direction. Lipnic has served as a Commissioner of the EEOC since 2010, having been nominated by Barack Obama to two consecutive terms, the second of which is set to expire in 2020. Immediately prior to joining the EEOC, Lipnic was a management-side labor and employment attorney for an international law firm and also served as the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009 under President George W. Bush. In that position, she oversaw the Wage and Hour Division, the Office of Federal Contract Compliance Programs, the Office of Workers’ Compensation Programs and the Office of Labor Management Standards. Continue Reading What Effect Will Trump’s Appointed Acting EEOC Chair Have on Retailers?

On January 22, 2017, the City of Los Angeles will ‘ban the box’ when the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) (the “Initiative”) goes into effect, prohibiting private employers in Los Angeles “from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment” is made to the individual. In doing so, Los Angeles will become the fourth California city to ‘ban the box’ with greater protections than the state statute, and the second to do so with respect to private employers. If an employer makes a conditional offer of employment and then receives information about an applicant’s criminal history, the employer cannot take an adverse employment action against the applicant based on that history until (1) a written assessment has taken place and (2) a Fair Chance Process has occurred. Continue Reading LA’s Law Banning the Box for Private Employers Effective This Month