On August 29, 2014, the Texas Supreme Court in Exxon Mobil Corp. v.

Update 2: On March 12, 2021, in Mikelsteins v.

Alyesha Dotson says the U.S. Supreme Court’s decision on affirmative action may result in a less-diverse talent pool for employers in the coming decades. 

Forbes

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David Christlieb talks about the Supreme Court striking down affirmative action, as well as its decision in siding with an employee who refused to work.

WGN Radio

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Alexander MacDonald says Jarkesy's biggest effect on the NLRB might come not from what the court ruled, but from what it decided not to rule on.

Law360 Employment Authority

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Alexander MacDonald says agencies may have to “regulate more modestly and litigate more often” after the U.S. Supreme Court overruled Chevron.

SHRM Online

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Alex MacDonald says that federal agencies will have to look for new ways to advance their policy positions in the wake of SCOTUS overturning Chevron. 

Corporate Compliance Insights

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Alexander T. MacDonald and Michael J. Lotito review four decisions in the U.S. Supreme Court's recently completed term and discuss how the rulings may affect employment law.

Westlaw Today

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Andrea M. Kirshenbaum discusses the 2023-24 SCOTUS opinions that promise to reshape administrative law in the United States for decades to come.

The Legal Intelligencer

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Alex MacDonald discusses recent court decisions that criticized the way the NLRB operates and that could transform American labor law.

Washington Legal Foundation

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On August 22, 2024, the U.S. Court of Appeals for the Ninth Circuit issued its decision in Synoracki v. Alaska Airlines, Inc., reviving a class action under the Uniformed Services Employment and Reemployment Rights Act (USERRA).¹ The case was brought by pilots who served in the Air Force Reserves who were seeking from their civilian employer sick leave and vacation accruals during periods of military leave.

In the wake of the Supreme Court’s Loper decision, Jamie Spataro says existing regulations and standards that went through extensive rulemaking are ripe for being challenged.

Business Insurance

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Ellen Donovan McCann says post-employment benefits are often the first to be amended when businesses experience budget challenges, but employers may have to take more care in changing them if SCOTUS decides that former employees can sue over those benefits.

SHRM

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On April 1, 2022, a Los Angeles County Superior Court ruled that California Assembly Bill 979—a bill designed to increase diversity and improve the persistently low number of underrepresented groups on corporate boards—violated the Equal Protection Clause of the California Constitution and was therefore unenforceable. In its ruling, the court acknowledged the pitfalls of homogeneity in business and communities, but it cautioned against quotas and specific number requirements.

As workplace issues have become more complex, human resource professionals and managers often turn to employment lawyers for advice in sorting out matters involving the interaction between business requirements and the requirements of employment laws and regulations. When is such advice protected from disclosure under the attorney-client privilege?

On June 1, 2023, in United States ex rel.

On October 4, 2024, the U.S. Supreme Court granted certiorari in Ames v. Ohio Department of Youth Services (Case No. 23-1039) to decide whether plaintiffs who are members of historically majority communities asserting “reverse discrimination” claims under Title VII must show there are “background circumstances” that support the inference that the defendant is the “unusual employer who discriminates against the majority.”

The “Background Circumstances” Requirement

Marshall v. Mercantile Exchange Corporation, 2024 CanLII 71128  (ONSC), is an action for wrongful dismissal where the employee claimed he could not mitigate his damages by seeking alternative employment indefinitely because of a mental health condition (i.e., stress and depression) allegedly arising out of his termination. He claimed a 26-month notice period. The employer sought an independent medical examination (IME) of the employee pursuant to s.

The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against applicants and employees on the basis of their arrest and conviction records.¹  Generally, an employer cannot make decisions on the basis of an arrest or conviction record unless the crimes “substantially relate” to the circumstances of the job at issue.²  For many years, the state agencies responsible for enforcing this law—the Wisconsin Department of Workforce Development (DWD) and the Labor and Industry Review Commission (LIRC)—have taken the view that crimes of domestic violen

Employers with operations in California are all too familiar with how state and local officials continue to restrict the access employers have to public records, including criminal history information.¹ For example, lengthy delays in completing standard criminal background checks are now routine in California.² Apart from criminal background checks, many employers rely on motor vehicle record checks (MVRs) to vet candidates for positions that require driving as part of the job.  In Doe v. California Dept.

In Escano v. Innovative Financial Partners, LLC,¹ a magistrate judge held that the defendants’ decision to withhold funds from a payment required under a settlement agreement when the plaintiff refused to provide a Form W-9 did not violate the agreement.

Sarah Bryan Fask says a decision clarifying when employers can exit union-brokered pension plans “potentially opens up the floodgates for a lot of employer uncertainty.”

Bloomberg Law

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In Aponte Valentín v. Pfizer Pharmaceuticals, CC-2018-748,¹ the Puerto Rico Supreme Court reinforced the strong public policy favoring arbitration agreements in Puerto Rico, validating continued employment as implicit consent for such agreements.

Rhonda B. Levy and Douglas Sanderson examine Northern Regional Health Authority v. Horrocks, in which the Supreme Court of Canada decided that in Manitoba, human rights disputes arising from the interpretation, application or alleged violation of a collective agreement fall within the exclusive jurisdiction of a labour arbitrator.

Human Resources Director Canada

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The United States Supreme Court’s decision in Viking River Cruises v. Moriana will dramatically impact employers’ rights to enforce arbitration agreements related to claims under California’s Private Attorneys General Act (PAGA).¹  This decision, which is a significant win for employers with interests in California, will allow employers to compel arbitration of a PAGA plaintiff’s individual PAGA claims.

On July 8, 2022, in Gist v. ZoAn Management, Inc., the Oregon Supreme Court affirmed the decisions of the trial court and court of appeals granting the defendants’ motion to compel arbitration.  The court concluded that because nothing in the arbitration agreement prohibited the plaintiff from being awarded any relief he might be entitled to under Oregon’s wage and hour statutes, the arbitration provision was not unconscionable and therefore enforceable.

Background

Christine Sargent writes about an Oregon Supreme Court case that affirmed the importance of implementing enforceable arbitration agreements.

SHRM Online

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On June 28, 2023, the California Second District Court of Appeal issued a decision interpreting the scope of California Code of Civil Procedure section 1281.98(a)(1), a recently amended California statute that requires employers to pay all arbitration costs and fees within 30 days of the due date, or risk being in material breach of the arbitration agreement.  In Cvejic v. Skyview Capital, the court held that an arbitrator cannot cure a missed or late arbitration fee payment.

On April 12, 2024, the U.S. Supreme Court addressed whether the Federal Arbitration Act’s (FAA) transportation exemption—meaning the FAA would not apply—only relates to workers within the transportation industry. In Bissonnette v. LePage Bakeries Park St., LLC,¹ the Supreme Court unanimously held Section 1 of the FAA exempts classes of workers who are actively engaged in interstate transportation, even if the individuals are not employed by a company in the transportation industry (the “Transportation Exemption”).

In the midst of declining infection rates and increasing debate over mask and vaccine mandates, on February 7, 2022, Sangamon County Circuit Court Judge Raylene DeWitte Grischow temporarily enjoined COVID-19 mitigation measure mandates that had been imposed by order of Governor Pritzker and related administrative agency rules, affecting nearly 170 school districts. Echoing the concern expressed by the Eleventh Circuit, in its December 2021 Georgia v.

Jim Paretti says two U.S. Supreme Court rulings on discrimination law that changed how employers evaluate religious accommodation requests and ended affirmative action in higher education will affect employers for years to come.

Law360 Employment Authority

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In a significant decision about workplace drug use, the Connecticut Appellate Court backed an employer’s right to terminate a worker who was impaired on the job by medical marijuana. The decision also clarified the factual basis an employer must possess to justify ordering a drug test based on suspicion of impairment.

Commenting on a SCOTUS decision, Alka Ramchandani-Raj said a type of OSHA matter that could see a future change in venue may be those involving certain General Duty Clause citations. 

Safety+Health

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In R. v. Greater Sudbury (City), 2024 ONSC 3959, the Ontario Superior Court of Justice (OSCJ) dismissed an appeal of the trial judge’s decision in which she acquitted the City of Sudbury (City) of various charges under the Occupational Health and Safety Act (OHSA).

Grant Goerke and Jennifer Chierek Znosko discuss a recent federal court decision that agreed an Illinois employer had the right to enforce a zero-tolerance policy on marijuana use.

Westlaw Today

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Rhonda B. Levy and George Vassos discuss an Ontario Court of Appeal decision that puts employers on notice that their discretion in awarding bonuses is not unconstrained and must be exercised fairly and reasonably.

Human Resources Director Canada

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A New York state judge has denied motions to dismiss actor Julia Ormond's claims against a film company, its parent company, and a talent agency based on conduct by film producer Harvey Weinstein, who Ormond alleges assaulted her in December 1995 in her Manhattan apartment. In her lawsuit, Ormond alleges that these entities knew about Harvey Weinstein's predatory behavior before he sexually assaulted her in 1995 and failed to protect her. The ruling allows the case to proceed, highlighting the potential scope of liability of these companies.

Littler’s Workplace Policy Institute files brief for the Coalition for a Democratic Workplace urging court to grant review of Goldstein v. Professional Staff Congress and reaffirm Constitutional protections against compulsory union representation

Alyesha Asghar and Julian G.G. Wolfson explain “background circumstances,” which are required as evidence in cases of reverse discrimination, and the implications for employers and IE&D.

Wolters Kluwer

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