Sixth Circuit Adopts NLRB’s D.R. Horton Rule and Deepens Circuit Split on Class Action Waivers

The Sixth Circuit Court of Appeals—apparently unable to wait a few months for the Supreme Court of the United States to rule on the issue—has now cast its lot with the National Labor Relations Board (NLRB) and the Seventh and Ninth Circuits in finding class action waivers in employment arbitration agreements unlawful under the National Labor Relations Act (NLRA).

Will Your Arbitration Program Survive the Contractor Blacklisting Regulations?

The arbitration restrictions contained in Executive Order 13673, Fair Pay and Safe Workplaces (EO 13673), have been largely overshadowed by other parts of the so-called “contractor blacklisting” rules. Nonetheless, for those federal contractors that have adopted or are considering adopting an employee arbitration program, the arbitration restrictions in EO 13673 are just as significant—and more imminent. On August 24, 2016, the White House announced the release of the final blacklisting rules, along with a gradual phase-in schedule that starts on October 25, 2016. While the final rules will not be in full effect for the next couple of years, the arbitration restrictions contained therein are set to take effect in just a few weeks. Between now and October 25, contractors that want to retain existing arbitration programs or implement new arbitration programs need to evaluate new limitations imposed by the final rules.

Ninth Circuit Holds Class Action Waivers Violate NLRA: What Employers Should Do Now

In an important 2–1 decision, a divided panel of the Ninth Circuit Court of Appeals recently concluded class action waivers in arbitration agreements violate the National Labor Relations Act (NLRA) and therefore are unenforceable. This ruling adds to the growing circuit split on this critical issue, increases the likelihood that the Supreme Court of the United States will resolve the open question, and presents key strategic decisions for employers to make in the interim.

DOL’s Recent Guidance on the “Economic Realities” Test and Effects on Independent Contractor Misclassification in the Energy Industry

Paying hot-shot drivers by the load or mile? Contracting out repair work to vehicles or machinery? Are individuals who regularly perform work integral to your business being paid through accounts payable? Have welders that you regularly call for work? Under new guidance published by the U.S. Department of Labor (DOL), what might be considered standard or normal practices in the energy industry could expose employers to claims and the risk of significant damages under the Fair Labor Standards Act (FLSA).

The Arbitration Obligations Imposed by the Fair Pay and Safe Workplaces Executive Order

As we discussed yesterday in our blog post, “President Obama Issues Two Executive Orders in 10-Day Period,” this week President Obama issued the Fair Pay and Safe Workplaces Executive Order. Under this order, federal contractors will be required to disclose labor law violations and comply with additional obligations regarding pay…..

Fifth Circuit Rejects NLRB’s D.R. Horton Decision

In a major win for employers, the Fifth Circuit Court of Appeals, on December 3, 2013, rejected the highly controversial D.R. Horton, Inc. decision from the National Labor Relations Board (NLRB). In D.R. Horton, the NLRB ruled for the first time that the National Labor Relations Act (NLRA) bans employers from including class action waivers

Supreme Court Rules Class-Action Waivers Are Enforceable—Even if the Cost of Individual Litigation Is Too High

This morning, with Justice Scalia writing for a 5-3 majority, the Supreme Court of the United States ruled that a waiver of class arbitration in a commercial contract is enforceable under the Federal Arbitration Act (FAA), even if the plaintiffs’ cost of individually arbitrating a federal statutory claim exceeds the potential recovery. The Court refused to invalidate the class-action waiver on the ground that pursuit of individual claims would be fiscally impractical. According to the Court, “The class-action waiver merely limits arbitration to the two contracting parties.

High Court Issues Key Ruling In Retaliation Case

Justices Hold Employee Response During An Internal Investigation Is “Protected Activity” On January 26, the U.S. Supreme Court once again expanded employ-ees’ ability to sue for retaliation. With seven Justices in agreement, plus the remaining two concurring in the judgment, the Court held that an employee who answers a question about a fellow employee’s improper

High Court Issues Key Ruling in Retaliation Case

On January 26, the U.S. Supreme Court once again expanded the ability of employees to sue for retaliation.  With seven Justices in agreement, plus the remaining two concurring in the judgment, the Court held that an employee who answers a question about a fellow employee’s improper conduct during an internal sexual harassment investigation is engaging

High Court Allows Workers to Sue for Retaliation Under Section 1981

Today, the U.S. Supreme Court further expanded the ability of employees to sue for retaliation – an area of employment law that has exploded in recent years.  Specifically, the Court held that a federal statute enacted shortly after the Civil War granting all citizens the right to enter into and enforce contracts (commonly referred to

More Retaliation Claims On The Horizon

The U.S. Supreme Court has further expanded the ability of employees to sue for retaliation – an area of employment law that has exploded in recent years. Specifically, the Court held that a federal statute enacted shortly after the Civil War granting all citizens the right to enter into and enforce con-tracts (referred to as “Section 1981”) can be used to bring a claim of employment-related retaliation.

EEOC's Suit For Monetary Relief Barred

Court Finds Workers Not Entitled to “Two Bites At The Apple” A federal appellate court recently held that the Equal Employment Opportunity Commission (EEOC) may not seek monetary relief or reinstatement on behalf of four workers who brought and lost a state court action based on the same set of facts. According to the court,

Texas Supreme Court Enforces Covenant Not to Compete

In a long-awaited decision, the Texas Supreme Court today drastically altered the landscape for the enforcement of covenants not to compete. In Alex Sheshunoff Management Services, L.P. v. Kenneth Johnson and Strunk & Associates, L.P., the Court modified its earlier holding in Light v. Centel Cellular Co., so that a unilateral contract can support a covenant not to compete.