Tuesday, March 20, 2018

Did McDonald's just dodge the joint employer bullet?

Not official use.
It was no secret. The Obama NLRB wanted to expand the concept of joint employment and McDonald's had a target on its back... but they ran out of time. The NLRB did expand joint employment, but that decision was overturned by the Trump NLRB (it's currently in a state of flux).

The Obama NLRB brought a case against McDonald's with the goal of holding them liable as a joint employer of its franchisee's employees. It would have been huge for franchise businesses across the country. Then, yesterday, news broke that McDonald's reached a settlement with the Trump NLRB. According to the reports, McDonald's would compensate employees who allege they were terminated in retaliation for participating in the "Fight for 15 (dollars per hour)." However, the important part is that "The proposed settlement does not include a determination that McDonald's is a joint employer of the workers."

We'll see what happens. It sure seems like - after all of this excitement the past few years - we're gonna end up right back where we started before the Obama NLRB set out on its expansion mission.

See also: I’m lovin’ it: McDonald’s settles joint employer case with NLRB from Jon Hyman.

Wednesday, March 7, 2018

6th Cir.: Title VII prohibits discrimination against transgender and transitioning employees

Earlier today, the Sixth Circuit held in EEOC v. Stephens:
Not official use.
Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.
Title VII prohibits "sex" discrimination but makes no mention of transgender or sexual orientation. However, this is the latest in a line of cases broadening the meaning of sex discrimination, and utilizing gender stereotyping theories, to afford protection to LGBT employees.

Just last week, the Second Circuit held that Title VII prohibits sexual orientation discrimination.

Monday, March 5, 2018

SCOTUS to take on yet another arbitration case

The Federal Arbitration Act (FAA) generally allows parties to enter into binding contracts to arbitrate disputes that may arise later. However, under Section 1, the FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1.

Last week, SCOTUS granted certiorari (agreed to hear) New Prime Inc. v. Oliveira. The case presents two interesting FAA issues:

1. If the parties agree to arbitrate any disputes (including the arbitrability of the dispute), then who decides whether the exemptions in Section 1 apply? A court? Or an arbitrator?

2. Does Section 1's exemption for certain "contracts of employment" apply to independent contractors?

We should get answers next term. The case involves an independent contractor truck driver and could have important implications for arbitration agreements in the transportation industry.

Tuesday, February 27, 2018

2d Cir: Title VII prohibits sexual orientation employment discrimination

Yesterday, the Second Circuit  issued its opinion in Zarda v. Altitude Express, Inc. The Court, sitting en banc* held:
Not official use. 
We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII.
The Seventh Circuit (en banc) came to the same conclusion last year. Will this be the case that gets the Supreme Court to weigh in? We don't know yet. SCOTUS may be waiting to see how some of the other circuits rule now that this modern re-interpretation is gaining momentum.

*Ordinarily Circuit Courts of Appeals decide a case with a 3-judge panel. "En banc" means that all of the judges on the Court participated in deciding the case (usually a sign that the Court viewed it as an important issue).

Monday, February 26, 2018

New case involving employee Facebook privacy

PennLive reports on an interesting new case in my local jurisdiction (Middle District of Pennsylvania): Woman claims she was fired after co-workers snooped on her Facebook page. The plaintiff is an employee who claims that her co-workers accessed her Facebook account without authorization while she was out on vacation. She claims her employer terminated her for the Facebook content.

With the caveat that these are just allegations that have yet to be proven . . . unauthorized access of an employee's Facebook page is a no-no. For starters, it violates the Stored Communications Act, which generally prohibits unauthorized access of electronically stored communications. Even a supervisor pressuring an employee into handing over her password may create liability.

Also, state common law often recognizes a vague notion of a "reasonable expectation of privacy," and potential liability for invasion of that privacy (often called "intrusion upon seclusion"). In my employment law class at Penn State, we cover the case of Ehling v. Monmouth-Ocean Hosp. Service Corp. The employee alleged an invasion of privacy where an authorized Facebook "Friend" handed over her posts to management.

The Court rejected her claim because the person who actually accessed her Facebook page was properly authorized as a "Friend" (some friend!). However, the Court was careful to note: "The evidence does not show that Defendants obtained access to Plaintiff's Facebook page by, say, logging into her account, logging into another employee's account, or asking another employee to log into Facebook." This suggests that unauthorized access may give rise to a cause of action for invasion of privacy.

In short, accessing an employee's Facebook page can be dicey. Employers should proceed with caution (and possibly some consultation with counsel).

Monday, February 19, 2018

James Damore's (aka Google Memo Guy's) NLRB charge withdrawn

An interesting update on James Damore aka Google Memo Guy, who I wrote about previously. As I stated in that post, I thought he had a viable protected concerted activity claim, but that "Google may have a decent defense if it can point to sufficiently inappropriate content in the memo."

The NLRB recently released a January 16, 2018 Advice Memorandum. The tldr version: 
Used in commentary. Not licensed use.
[W]hile much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.
Thus, the Associate GC's advice was for the region to dismiss the charge.

The case page includes a docket entry from January 23, 2018 (just one week after the advice memo), "Letter Approving Withdrawal Request." Does this mean Damore gives up? His new class action lawsuit tells me, probably not.

Tuesday, February 6, 2018

Fired for What!? - Meek Mill and the Court Clerk

I suppose a Philly-themed post is appropriate given that the new NFL champions are PA's own Philadelphia Eagles. Did you like that rap song the Eagles played as they took the field in te Super Bowl? It's called Dreams and Nightmares, by Philadelphia rapper, Meek Mill.

Meek Mill has had some legal problems . . . but this post isn't (directly) about those. While Mr. uhh, Mill (?) was in court for sentencing, a clerk slipped him a note begging for money to pay her son's college tuition. You've gotta be kidding me. In any event, Meek Mill did not respond, got a harsh prison sentence, and, now the clerk has been fired.

Needless to say, asking for money from a criminal defendant while you are working for the Court is an awful idea.