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BT Currents - Hot Topics in Employment Law
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26 Aug 2013 You May Have More Employees Than You Think (Part II)

Following on last week’s post about a Sixth Circuit case counting certain volunteers as employees for purposes of determining whether an employer has the requisite number of employees to be covered by the FMLA, recent guidance from the EEOC cautions employers that individuals designated as “partners” or other owner-type positions may in fact be employees for purposes of determining eligibility under the Age Discrimination in Employment Act (ADEA). These two involve different laws and different groups of potential employees, but share the important takeaway for employers –…

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21 Aug 2013 Sixth Circuit Counts Paid Volunteers As Employees Under the FMLA

A divided Sixth Circuit recently came to a surprising decision regarding the definition of “employee” under the Family Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA). In Mendel v. City of Gilbraltar, No. 12-1231 (6th Cir. Aug. 15, 2013), the Court determined that paid volunteer firefighters were “employees” for purposes of the FMLA and FLSA. The plaintiff police dispatcher brought suit against the city alleging a violation of his rights under the FMLA. The city moved for summary judgment on the basis that it…

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20 Aug 2013 Is EEOC Conciliation Subject to Judicial Review? Seventh Circuit to Decide

When the EEOC files federal court lawsuits alleging discriminatory conduct,  defendant-employers routinely assert a “failure to conciliate” defense.  Thus, the issue becomes whether and to what extent a court can review the EEOC’s internal pre-suit conciliation process. In its case against Mach Mining LLC, pending in the Southern District of Illinois, the EEOC took the position that the court cannot review its conciliation efforts. However, the District Court rejected that position and determined that conciliation is subject to at least some level of judicial review.  In particular,…

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20 Aug 2013 Back to School: Time to Focus on Takeaways from Supreme Court Flurry

The end of the U.S. Supreme Court term in June included an extraordinary number of important decisions, in employment law and otherwise. Sometimes it is hard to take it all in as the new stories and alerts fly, so we thought it was a good idea now that the dust has settled to review the three key employment cases and their implications. If you missed our webinar on the topic last week a quick summary follows.   Tina Syring-Petrocchi began by reviewing Vance v. Ball…

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19 Aug 2013 OFCCP Champions the Rights of Male Workers

Who said no one cares about the white male under 40? Take heart men – the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) cares about you and your employment rights. As part of an affirmative action audit of a government contractor, OFCCP found that the contractor discriminated against males applying for entry-level positions that involved contact with the public.  Perceptions that women have better customer service skills played into hiring decisions favoring women, found OFCCP. As a result, 200 qualified male applicants did not…

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15 Aug 2013 FMLA Extended to Same-Sex Couples in 13 States

Labor Secretary Thomas E. Perez has quickly responded to the Supreme Court’s decision in Windsor.  In an e-mail, Perez announced that the Department of Labor has already updated several guidance documents to remove DOMA and its definition of spouse from the FMLA. The net effect of the move is that spousal leave and job restoration protections are now available to the spouses of legally married same-sex couples in states that permit same-sex marriage.  The FMLA defines “spouse” as a husband or wife recognized under the…

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15 Aug 2013 Second Circuit Rules that Class Action Waivers are Allowed Under the FLSA

Employers recently won a major victory in the Second Circuit with the release of Sutherland v. Ernst & Young, LLP, in which the court held that class action waivers are not prohibited under the Fair Labor Standards Act (FLSA). Consequently, arbitration agreements with employees that require them to arbitrate their claims individually are lawful in the Second Circuit. The court previously had invalidated class action waivers in arbitration agreements in In re American Express Merchants’ Litigation (AmEx I) on the theory that plaintiffs would face…

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13 Aug 2013 EEOC Not Faring Well in Background Check Disparate Impact Cases

The EEOC’s crackdown on the use of background checks has taken another body blow, this time delivered by federal Judge Roger Titus out of the District of Maryland. After a recent spate of adverse decisions in such cases (including cases against BMW Group and Kaplan Higher Education Corp.), national event planning company Freeman found itself in the agency’s cross-hairs. The opinion, granting Freeman summary judgment, can be found here.  While acknowledging that it is possible to prove a discriminatory disparate impact (here, against African-Americans and…

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12 Aug 2013 Sixth Circuit: No Way to Agree to Shorten FLSA Statute of Limitations

In 2004, a Sixth Circuit decision, Thurman v. DaimlerChrysler, drew much attention by upholding in the context of a Title VII and state law discrimination claim a provision on the employer’s employment application that read: I agree that any claim or lawsuit relating to my service with [DaimlerChrysler] or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to…

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09 Aug 2013 EEOC Hit With $4.7 Million in Attorneys’ Fees and Costs

On Aug. 1, the U.S. Equal Employment Opportunity Commission (EEOC) was ordered to pay $4.7 million in attorneys’ fees and costs in the litigation it brought against CRST Van Expedited (CRST) in 2007. In that litigation, the EEOC alleged that female workers had been sexually harassed by male employees and trainers. CRST challenged the sweeping sexual harassment claims brought by the EEOC and U.S. District Court Judge Linda R. Readle agreed, describing the EEOC’s tactics in identifying the class of female workers as a “moving…

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