Last week, the US Supreme Court made it easier for a federal worker to establish a claim for age bias.

This decision does not impact private employers, because it relied on the specific language of the federal sector section of the Age Discrimination in Employment Act (ADEA). But could this signal a possible future loosening of the burden of proof for other plaintiffs? We will have to wait and see.

SCOTUS held that federal employees can establish age discrimination under the federal sector section of the ADEA, merely by proving that age bias “taints the employer’s decision-making process.” Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882. This is weaker than the “but-for” standard of causation applicable to age discrimination claims under Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In other words, the fact that the same employment decision would have been reached had age not been taken into account is not relevant for purposes of deciding a federal government employee’s age discrimination claim.


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JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST

Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel and senior associate Diana Hamar as they share practical advice for

As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.

There are three overriding rules that all employers should remember:

  1. Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
  2. Think about how you can keep your business going.  Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
  3. Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.

Below are some general answers to questions our clients have been asking.  However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.


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With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.

Know Your Resources

Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:


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This Advisory supplements our previous advisories, October 2014October 2013November 2012November 2011, and October 2010, addressing the requirements of the Affordable Care Act (“ACA”).

Unlike most other years since the Affordable Care Act (“ACA”) was passed, there are relatively few new requirements employers need to implement in connection with their health plans subject to the ACA. This Advisory summarizes some of those relevant rules and guidance.
Lapse of Transition Rules for Employer Mandate Provisions

Effective in 2016, various transition rules which were available in 2015 for the employer mandate, will no longer be available. These include the following:

  • Applicable large employers (“ALEs”) with between 50 and 100 qualifying employees will be fully subject to the ACA’s employer mandate rules and penalties for not offering affordable coverage that meets the ACA’s minimum value and minimum essential coverage standards. In 2015, these employers were exempt from certain of the ACA’s employer mandate penalties.
  • All ALEs must offer minimum essential coverage to at least 95% of their full-time employees to avoid certain employer mandate penalties. In 2015 the threshold was 70%.
  • The special rule allowing employers to determine ALE status on any consecutive six-month period during 2015 is no longer available.
  • Special transitional relief for non-calendar year plans in 2015 is no longer available.
  • The penalty calculation to determine whether minimum essential coverage was offered to 95% of full-time employees allows an employer to subtract 30 from the total number of full-time employees considered in the penalty calculation. In 2015, an 80 employee reduction was permitted.


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Last month, in Transunion Risk and Alt. Data Sols., Inc., v. MacLachlan, the Eleventh Circuit held that the district court should have considered hardship to an employee when it enforced a restrictive covenant in an employment contract. This holding limits the effect of a Florida statute favorable to employers in disputes over non-competition agreements