‘Tis The Season for Sneezin’ – Where Does The Law Stand On Mandatory Flu Vaccines?

Fall is in the air – when the air becomes crisp, our thoughts turn to Halloween, turkey and — thanks to constant reminders — and our annual flu vaccine.

Many health care facilities have implemented policies which require employees to be vaccinated.  There are many reasons why this is a good practice, particularly for employees who work on the ‘front lines’ of patient care; however, we have recently been reminded that such policies must be carefully crafted and implemented to accommodate employees who cannot or do not wish to be vaccinated.

Up until this year, there was little EEOC activity and not much litigation over flu vaccines.  But that has changed with two federal courts reaching the issue this year.

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Is There a Change in the Wind for LGBTQ Law?

Unlike many of us, the courts were not on vacation during the month of August in the area of LGBTQ law.  We have seen a number of rulings which seem to signal that the courts are trying to “slow down” the EEOC and other federal agencies as they pursue their stated goal of advancing the rights of LGBTQ employees in the workplace.  These decisions also should send a message to Congress and the Supreme Court that it is time for one or both of these bodies to act and clarify the obligations of an employer to gay, lesbian and transgender employees.

We reported on the Seventh Circuit’s ruling in Hively v. Ivy Tech, where the Court (reluctantly) held that Title VII did not cover discrimination on the basis of sexual orientation.  In so doing, the Court was openly conflicting with the EEOC on this important issue and signaled that either Congress or the Supreme Court needed to address this question.  The EEOC on August 30 asked the full 7th Circuit to reconsider that ruling. Hively v. Ivy Tech Community College, No. 15‐1720 (7th Cir. July 28, 2016)

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Ninth Circuit Invalidates Class Waiver in Arbitration Agreement

In a ruling that widens the divide between federal appellate courts, the Ninth Circuit sided today with the Seventh Circuit and the National Labor Relations Board (“NLRB”) in holding that the class action waiver provision of a company’s arbitration agreement with employees violates the National Labor Relations Act (“NLRA”). Prior to this decision, the Seventh Circuit was alone in its dissention from the federal majority with respect to this issue.

The United States Supreme Court in AT&T Mobility v. Concepcion made clear that class waivers are enforceable under the Federal Arbitration Act (“FAA”), at least in the context of consumer class actions, and that state laws that inhibit the full effectuation of the FAA are void. The NLRB, however, in its continuing bid to establish its relevance in the contemporary workplace, has challenged class waivers executed by employees; in D.R. Horton, Inc. v. NLRB, the NLRB held in 2012 that employees’ Section 7 rights are violated by such waivers, and that the FAA does not override this right. The NLRB’s ruling in D.R. Horton spawned a great deal of commentary and litigation – the NLRB’s ruling that class waivers are unenforceable was itself rejected by an appellate court in the Fifth Circuit. A host of federal appellate courts, as well as lower courts, have also criticized the NLRB’s ruling and refused to adopt its reasoning. Notably, the Fifth Circuit decision emphasized that the use of class action litigation is a procedural, rather than a substantive right, and that prohibiting class action waivers would discourage arbitration and, thus, violate the spirit and purpose of the FAA.

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What the Seventh Circuit’s Recent Title VII Ruling Means for Sexual Orientation Discrimination in the Workplace

On July 28, 2015, the United States Court of Appeals for the Seventh Circuit (“Seventh Circuit”) ruled that Title VII does not protect against sexual orientation discrimination.  See, Hively v. Ivy Tech Cmty. Coll., 2016 BL 244172, 7th Cir., No. 15-1720, 7/28/16.  The Seventh Circuit ruling is the first by a federal circuit to address the question since the EEOC held in an administrative ruling that bias based on sexual orientation is sex discrimination violating Title VII.

The Seventh Circuit did not discuss the merits of Ms. Hively’s case, who alleged Ivy Tech Community College did not promote her because she is a lesbian.  Instead, the Court discussed the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”  Judge Rovner wrote:

For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so….Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation. . .

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What You Need to Know About Recent Amendments to Illinois’s Equal Pay Act

As of January 1, 2016, Illinois’s Equal Pay Act (the “Act”) expanded to prohibit all employers, regardless of size, from paying unequal wages to men and women for doing the same or substantially similar work, except if the wage difference is based upon a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or factors other than gender.  The previous version of the Act only applied to employers with four or more employees.

The recent amendments to the Act also increase the civil penalties for violation of the law as follows:

  1. For employers with four or more employees:  For a first offense, a fine not to exceed $2,500; for a second offense, a fine not to exceed $3,000; and for a third or subsequent offense, a fine not to exceed $5,000; and
  2. For employers with fewer than four employees:  For a first offense, a fine not to exceed $500; for a second offense, a fine not to exceed $2,500; and for a third or subsequent offense, a fine not to exceed $5,000.

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Sandquist v. Lebo Automotive, Inc.: California’s Cautionary Tale About the Importance of Drafting Arbitration Agreements with Precision

Ambiguities in employee arbitration agreements may force employers to litigate putative class action claims in arbitration. The California Supreme Court delivered this cautionary message by its recent holding in Sandquist v. Lebo Automotive, Inc. In Sandquist, the plaintiff, an African-American male, filed a discrimination class action on behalf of “current and former employees of color” following his separation from the company. The company filed a motion to compel individual arbitration, relying on an arbitration clause the plaintiff signed in three separate documents upon commencing his employment. The trial court granted the company’s motion, concluding that the existing case precedent required the court – rather than the arbitrator – to determine whether class arbitration was available. Ultimately, the trial court interpreted the arbitration agreements’ as impliedly prohibiting class arbitration and, on that basis, struck the class allegations.

Upon review, the Court of Appeal reversed the trial court, holding that the arbitrator, not the trial court, must determine whether an arbitration agreement permits class arbitration. The California Supreme Court granted review and, on July 28, 2016, a narrowly divided Court affirmed the Court of Appeal, holding that the question of whether a court or an arbitrator decides if an arbitration agreement permits class claims should be determined on a case-by-case basis, specifically focusing on the agreement’s terms and resolving any ambiguities in favor of the non-drafting party. By its decision, the Court placed itself at odds with numerous federal appellate courts that have held that such questions are for a court, not an arbitrator, to decide.

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A Conflicted 7th Circuit Holds Title VII Does Not Cover Sexual Orientation Discrimination

In a precedent-setting decision, the U.S. Court of Appeals for the Seventh Circuit ruled on July 28th that Title VII does not protect against sexual orientation discrimination.  The case is Kimberly Hively v. Ivy Tech Community College, No. 15‐1720 (7th Cir. July 28, 2016).

The 7th Circuit upheld a district court’s decision to dismiss a lawsuit brought by Kimberly Hively, a lesbian professor, who had sued Ivy Tech Community College, in August 2014.  Hively claimed that she was repeatedly passed over for promotions and a full-time position because of her sexual orientation.

The 42-page unanimous decision is interesting, as while the Court upheld the dismissal of the case, it clearly felt conflicted over what it described as “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”  (Order at 33.)  Indeed, since Obergefell v. Hodges, 135 S. Ct. 2584 (2015), federal law now guarantees anyone the right to marry another person of the same gender.  However, Title VII also permits an employer to fire an employee for exercising this right.

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Supreme Court Stays Fourth Circuit’s Ruling Affirming Transgender Students’ Bathroom Rights

The Supreme Court stayed a Fourth Circuit ruling that requires schools to allow transgender students to use the bathroom of the gender they identify as. We are monitoring the case for its impact on employers going forward. For our past analysis on this issue, please refer to the following posts:

Lessons to be Learned from Uber’s “Wrong Turn” with a Private Investigation

In today’s era of social media and the internet, many of us have an insatiable desire for information and a knee jerk reaction when attacked:

  • What dirt can we find out about our adversary?

This often happens in litigation – someone sues you or your company, and your first reaction is to jump on Google or Facebook to get some bad information on the other side.  What can we find out about him?  What skeletons does she have in her closet?  What bad stuff have they done in the past?

However, in litigation the best defense is often NOT a good offense, and gathering irrelevant, and potentially harmful information about the other side can backfire.

It is also critical to remember that whether in-house or at a firm, as lawyers, our conduct must be above reproach.  That means that even in the heat of battle, you should never forget your ethical obligations and your mandate as an officer of the court to conduct litigation, at all times, within the bounds of the law.

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Barbara Hoey Quoted on Internal Investigations in Compliance Week

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I recently sat down with a reporter from Compliance Week to discuss the implications of Gilman v. Marsh & McLennan, a recent federal appeals court ruling affirming that companies have cause to terminate employees who refuse to cooperate in internal investigations.  As I wrote in June, the decision is significant to any company that faces allegations of corporate misconduct and seeks cooperation in a government or internal investigation.

In the article, I pointed out that employers must distinguish between the personal rights of employees and their obligations to the company. The Gilman decision confirms that in many cases, including harassment investigations or other investigations of workplace misconduct, an employee’s refusal to cooperate in an internal investigation will constitute a valid cause for termination. This decision serves as a reminder to have language in the Code of Conduct, employment contracts for senior executives and corporate bylaws about the company’s internal investigation policy. “It’s essential to have those written policies. If you don’t have it in your policies, it’s going to be hard to require the cooperation that you need.”

The full article can be found here.

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