Worker’s rights opinions written by Judge Neil Gorsuch, President Donald Trump’s pick for the Supreme Court, are often sympathetic but coldly pragmatic, and they’re usually in the employer’s favor, according to a review conducted by the Associated Press.

“A review of dozens of employment cases he heard in his decade on the U.S. 10th Circuit Court of Appeals reveals a focus on texts and a fondness for scrutinizing definitions of words in legislation and the Constitution. Conservatives herald his strict approach. Many liberals say it too often results in workers losing out,” write AP reporters Denise Lavoie and Michael Tarm.

The federal appeals court judge has sided with employers 21 out of 23 times in disputes over the U.S. pensions and benefits law, the Employee Retirement Income Security Act, or ERISA. He sided with the majorty in all 21 cases.

Read the AP article.

Akerman LLP has launched WorkedUp, a new podcast that explores the ever-changing world of employment law and human resource management.

Hosted by New York labor & employment partner Matthew Steinberg, WorkedUp combines candid discussions, practical insights, and comic relief on the legal and business issues impacting employers nationwide, the firm said in a release.

The podcast will cover timely topics and emerging trends for 2017 and beyond, including the impact of the election cycle on employers, tech innovations in the workplace, and more. Episodes will feature discussions with a diverse roster of guests, including defense lawyers, plaintiff-side lawyers, in-house counsel, business executives, government agency representatives and other thought leaders.

Listeners may subscribe to WorkedUp on their mobile devices (iOS / Android) or listen on the firm’s website. Episodes are also available to stream at www.akerman.com/WorkedUp.

Akerman also delivers important developments in labor and employment law on the HR Defense Blog.

Listen to the podcasts.

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Although there should certainly be some consistency in the pursuit of any workplace investigation, the investigation of discrimination complaints requires sensitivity to some special considerations that will not always apply to other complaints, according to an article published by Lynch Service Company.

The articleoutlines some of those considerations and encourages the reader to become knowledgeable of the unique challenges that discrimination investigations present.

Three common legal theories may apply to a workplace complaint: (1) disparate treatment, (2) disparate impact, and (3) hostile work environment. The article also explains the importance of understanding how a discrimination lawsuit unfolds, investigating properly, and, after concluding the investigation, re-evaluating the evidence in light of the guiding legal theory.

Read the article.

Management’s standard response when an employee says they’re leaving the company is to walk that worker out the door immediately. But James Pooley writes on Orrick, Herrington & Sutcliffe LLP‘s website that the standard approach could put confidential information at risk.

“When you first learn of a departure, you are engaged in triage with two parallel priorities: find out what’s going on, and lock down the evidence,” he advises. “In most circumstances that may give you time for an initial meeting to get some details and perhaps try to turn the situation around. But you also have to be ready immediately to take actions that guarantee you get control over your data.”

Pooley provides a detailed exit interview checklist that covers possession of data and any restrictive agreements that will govern the departing employee’s behavior in his new job.

Read the article.

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Disparate treatment and disparate impact are two very different types of employment discrimination that use two very different tests to determine if illegal discrimination has occurred and if an employer may be liable for such discriminatory conduct, according to an article published by Lynch Service Company. Having a better understanding of these terms and the potential liability they may impose on a business can help HR professionals and CEOs prevent expensive litigation.

The article covers anti-discrimination laws, disparate treatment, legal test for disparate treatment, disparate impact, and the legal test for disparate impact.

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Read the article.

The Rules of Evidence protects communication between attorneys and clients from being revealed to the other side during a dispute. It’s a basic concept found in federal and state rules of evidence throughout the country. It often comes into play when an employee or former employee alleges harassment or other wrongdoing, according to a report published by Lynch Service Company.

Harassment accusations are often a surprise. The company needs to figure out what really happened, and time is almost always an issue. It’s understandable that leaders want to start asking questions and investigating the situation.

If this happens in your organization, make sure your team resists the urge to jump into an investigation without an appropriate plan or your company could lose its attorney-client privilege. In many cases, the company accused of wrongdoing is unpleasantly surprised to learn that they will be forced to give the other side access to many of the internal communications the company assumed would be kept private. The human resources team and managers must navigate early investigations carefully and make sure the proper individuals are conducting them.

Read the article.

When a nonprofit suspects that someone in the organization might be engaged in wrongdoing, it can be particularly traumatic because the nonprofit team works together to make the world a better place, according to an article published by Lynch Service Company. If someone on the team is accused of fraud, embezzlement, or harassment, leadership handle an investigation carefully and appropriately.

Nonprofit investigations are often unique because volunteers might be important witnesses, and the nonprofit might not be able to learn much about the situation if volunteers don’t cooperate with the investigation. Since volunteers are often critical witnesses, is it possible for nonprofits to require them to cooperate with an investigation? In order to answer that question, we begin by considering whether or not an organization is able to compel employees to cooperate with an investigation. After all, if employees cannot be forced to speak with an investigator, it seems unlikely that a nonprofit could require cooperation from volunteers.

The article continues with a discussion of the obligations and rights an organization has with regards to volunteers.

Read the article.

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By its very nature, a workplace investigation is an inquiry; a search for the truth behind complaints or concerns received, according to an article published by Lynch Service Company.

Recognizing the need for such an inquiry is sometimes straightforward. In a typical circumstance, an employee may file a complaint with the human resources department. It then becomes the organization’s responsibility to evaluate the legitimacy of that complaint through investigation.

Often times, the organization even has a legal responsibility to investigate the response. In other situations, symptoms of a larger problem may arise more subtly: through turnover, diminished performance, increased absenteeism, etc. In the day-to-day hustle and bustle of meeting deadlines and managing crises, these symptoms sometimes go overlooked.

A “head in the sand” approach is not advisable; do not make the mistake of assuming all is well so long as no one is making formal complaints. The organization interested in minimizing its legal exposure maintains a responsibility for assuring symptoms are recognized and properly investigated and resolutions are implemented.

The article discusses some basic principles for properly conducting a workplace investigation.

Read the article.

An informal guidance from the U.S. Equal Employment Opportunity Commission reminds employers of the commission’s expansive interpretation of what constitutes a reasonable workplace accommodation, reports Seyfarth Shaw LLP in its Employment Law Lookout blog.

Author Bridget M. Maricich advises that employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.

“The informal guidance is a useful primer for understanding the EEOC’s expanding stance on employer obligations to provide reasonable workplace accommodations,” she writes.

Read the article.

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Many employers received a last-minute reprieve from new federal overtime rules that would have gone into effect Thursday, Dec. 1, entitling thousands of previously “exempt” workers to overtime pay. But the Texas federal judge’s temporary injunction creates uncertainty for businesses preparing for the employment compliance playing field going forward, according to a post on the website of Androvett Legal Media & Marketing.

In a client alert, employment attorney Audrey Mross of Dallas’ Munck Wilson Mandala notes that many employers had already revised workers’ pay to comply with the Department of Labor’s overtime rule. Businesses that have not yet implemented changes now have breathing room to wait for a final ruling from the courts. However, those that have already altered employee pay should think carefully before reversing already announced pay changes.

“If a pay increase was already announced or implemented, and you are considering putting it on hold, there are further considerations that may not apply such as employee relations, an angry or confused employee seeking legal counsel, state laws requiring written notice prior to reducing pay, and collective bargaining on pay issues,” Mross says.

Read the Munck Wilson client alert.

A Texas judge’s decision to block sweeping new overtime rules hadn’t been out for two hours Monday evening before Philadelphia employment lawyer Gina Ameci started getting phone calls from her employer clients, reports The Philadelphia Inquirer.

Now what? “As of today, there is no law,” she said. “Anything is possible.”

“The judge’s decision came as a relief to industry groups, such as the Retail Industry Leaders Association, one of the 50 business groups that had sued the U.S. Labor Department,” writes reporter Jane M. Von Bergen.

“Ameci said her clients, now faced with a period of uncertainty, would now have to weigh their risks. Should they roll back new policies to save money and then face potential liability if the regulation is ultimately upheld? That risk might be worth it, she said, for nonprofits who often have people doing professional work, but earning in the $35,000 a year range,” the report says.

Read The Inquirer‘s article.

“State Call to Action on Non-Compete Agreements” is the White House’s latest in a series of Executive Branch missives decrying the purported misuse of non-competition agreements by employers across the country, according to an article posted on the website of Jackson Lewis P.C.

Authors Clifford R. Atlas, David M. Walsh and Erik J. Winton write that the latest call to action repeats some of the Administration’s earlier conclusions on the subject: “including the view that use of non-compete agreements artificially restrict competition, restrict worker mobility, create barriers to changing jobs and weaken employees’ bargaining power. The stated goal of the White House issuances on non-competes is to address wage stagnation and boost the economy.”

“Many attorneys who represent companies in restrictive covenant litigation find the Administration’s conclusions and stated concerns about the evils of non-compete restrictions puzzling,” they write.

Read the article from Jackson Lewis.

The woman partner who filed a gender discrimination class-action against Chadbourne & Parke leveled new accusations in an amended complaint on Thursday, including that the firm’s head of litigation placed a cartoon of a fat man in a bowler hat on her wall and took a postcard from her office, reports Bloomberg Law.

The complaint includes new allegations from former partner Jaroslawa Z. Johnson who is joining current partner Kerrie Campbell as a named plaintiff in the suit. Johnson ran the firm’s Kiev office for nearly 10years.

Reporter Stephanie Russell-Kraft writes that the complaint also adds six individuals as named defendants, including Abbe Lowell, the head of litigation based in D.C., and four members of the management committee — Andrew Giaccia, the firm’s managing partner; Lawrence Rosenberg, Howard Seife, and Paul Weber, who are all located in New York City. Marc Alpert, a former member of the management committee, is also named as a defendant.

Read the article.

By Cortney Shegerian
Shegerian & Associates

The Americans with Disabilities Act protects disabled individuals from discrimination and harassment in the workplace, but what health conditions are considered disabling? According to the EEOC, claustrophobia is a disability that must be accommodated in the workplace.

Regis Corporation will pay $60,000 to former hair stylist Nora Jacquez to settle a disability discrimination suit filed by the EEOC. Jacquez told her employer she could not work in a station “if it was in a confined space located between others,” because of her claustrophobia. The employer initially gave in to her request and placed her in an open station, but later, she was moved in between two other stylists. Her requests to move back into an open station were denied, and as a result, she suffered anxiety attacks that led to her hospitalization.

Jacquez then requested up to two months off to treat her claustrophobia, but the company failed to assist her with the required paperwork. Regis Corporation eventually fired Jacquez from the SmartStyle salon in Midland, Texas.

On top of the $60,000 settlement, the company must also provide ADA training to district leaders, salon managers and hair stylists in the region. They are also required to provide their employees with information regarding disability discrimination in the workplace and how it can be reported.

An EEOC attorney commented on the case, “Claustrophobia is a serious matter. When we discovered management refused to give this employee some space, our investigation closed in on what amounted to intolerance by management.”

Some employers may be surprised to learn claustrophobia is considered a disability. According to the Americans with Disabilities Act, a person can prove he or she has a disability by meeting one of the following conditions:

• Having a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
• Having a history of a disability (such as cancer that is in remission).
• Believed to have a physical or mental impairment that is not transitory and minor.

Disabled employees are legally allowed to request that their employers make reasonable accommodations in the workplace for their disability, which is what Jacquez did by asking to be moved to an open station. As long as the accommodation does not severely hurt the business, employers are required to follow through and make the necessary changes.

But, employers often have a hard time determining what mental conditions are disabling, since there are rarely observable, physical signs of the disability. Even those employers who are more aware of mental disabilities may be under the impression that conditions such as depression, anxiety and bipolar disorder are the only ones considered to be disabling. But, as long as the condition can impair the ability to perform a “major life activity,” it is covered under the ADA. Because the definition of a major life activity is broad and can include everything from eating, hearing and standing to thinking, working and concentrating, many mental health conditions do qualify as disabilities.

The lesson here? Employers should never discount an employee’s health condition just because they don’t think it is serious. This case should also serve as another reminder that employers should never brush off an employee’s request for reasonable accommodations in the workplace. Just because you can’t see the signs and symptoms of a disability does not mean it doesn’t exist or deserve your attention.

Author Bio: Cortney Shegerian is an attorney with Los Angeles based Shegerian & Associates. Shegerian’s practice areas of expertise include discrimination, harassment, whistle blower retaliation and wrongful termination, among others. Her work includes all aspects of case management, with a particular emphasis on mediation, trial preparation and jury trial litigation.

Laura Bartlow of Zelle LLP writes in a post on JDSupra that the very first item on her list of rules for employers is this: Don’t make promises to your employees that you can’t or won’t keep.

“Employers’ promises include those set out in employment contracts, of course, but there are others promises made by employers that can create legal liability and that are worth regular attention,” she explains. “And it works both ways – employees, related businesses, and vendors may also be obligated by the agreements that they have made with you.”

She discusses some of the most important points to consider, including: obligations in written employment contracts’ obligations in written policies and handbooks; obligations of employees, related organizations, and vendors; and obligations created by government contracts.

Read the article.

In what may be a trend, several courts around the country this year have embraced strict interpretations of non-compete agreements, refusing to blue pencil or equitably reform overbroad or unreasonable clauses in non-compete agreements, according to an article by Christopher Lindstrom and Emily Fox in Nutter McClennen & Fish LLP’s Non-Compete Law blog.

The explain that courts traditionally have exercised the doctrine of equitable reformation to re-write provisions to render them reasonable, or at the very least, strike unreasonable provisions to save those that are reasonable.

They discuss cases from Nevada, North Carolina and New York that illustrate their point.

Read the article.

A federal judge has ruled that closure of Orlando-based Butler & Hosch law firm was illegal because executives knew it would close and didn’t warn employees in accordance with federal law, reports the Orlando Sentinel.

When the firm closed in 2015, about 700 employees in Dallas, Orlando, Miami, Tampa and other locations were told in a conference call that they would not be paid for their final three weeks at work, writes reporter Paul Brinkmann. Law requires 60-day notice of mass layoffs, but employees were told of the plan on the last day.

“If the company were still functioning, the law says it could be required to pay wages and benefits for 60 days to each employee, plus a fine totaling about $21 million — $500 per day per employee,” according to Brinkmann.  But now that claim becomes part of the firm’s bankruptcy process.

Read the article.

Juan C. Enjamio and Robert Scavone Jr. of Hunton & Williams report that the Eleventh Circuit recently addressed a novel issue: What should courts do when faced with an employment contract containing provisions that run afoul of a statute aimed at protecting the rights of men and women who serve in the armed forces?

The Eleventh Circuit answered this question in Bodine v. Cook’s Pest Control Inc., and held that an arbitration agreement in an employment contract is enforceable despite the fact that certain provisions of the arbitration agreement violate the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA).

They explain that Congress enacted USERRA in part “to prohibit [employers from] discriminat[ing] against persons because of their service in the uniformed services.”

Rodney Bodine brought suit against his former employer under USERRA and state law, alleging, inter alia, that Cook’s discriminated against him because of his military service. Bodine argued that the entire arbitration agreement of his employment contract was void under USERRA’s nonwaiver provision because the statute of limitations and attorneys’ fees provisions of the arbitration agreement conflicted with USERRA.

The appellate court affirmed the district court’s order and concluded that “USERRA’s nonwaiver provision should not be read to automatically invalidate an entire agreement with USERRA-offending terms.”

Read the article.

Research conducted as part of a flagship report on human rights published in partnership with Herbert Smith Freehills shows that the growing importance of corporate human rights clauses is changing the way GCs operate, reports Legal Business.

A survey of 275 GCs and senior counsel found that 46 percent of businesses now have a human rights policy in place. For companies in the $10bn+ revenue bracket, that figure rises to 84 percent.

Reporter James Wood writes, “As Stéphane Brabant, co-head of Herbert Smith Freehills’ business and human rights group, commented: ‘Human rights are not a law-free zone for businesses. Failing to respect human rights presents real legal risks for companies and the way lawyers, both in-house and external, advise businesses requires a new way of thinking – this is a new legal practice.’ ”

Read the article.