Observations from panelists at the Association of Corporate Counsel's annual meeting.
The big questions and cases in employment law right now flow from the changes brought by a business-friendly Trump administration and the swath of laws passed at the state and local levels that are giving companies compliance headaches.
A panel of experts speaking Monday at the Association of Corporate Counsel's annual meetingin Washington presented a rundown of the cases employment attorneys are watching. The overview included laws and court cases that would have an impact on the sector at large.
The panelists Monday were: Nicky Jatana, a principal with Jackson Lewis based in Los Angeles; Greg Watchman, managing associate general counsel for employment law and employee relations at Freddie Mac; Jen Fournier, general counsel to Sound Community Services; and Jennifer Deitloff, associate general counsel at Link Snacks Inc.
Here are some of the cases and issues the panelists said companies should keep an eye on or keep in mind:
► Browning-Ferris Industries v. NLRB: Joint-employer relationship
The U.S. Court of Appeals for the D.C. Circuit will decide whether to uphold an Obama-era National Labor Relations Board decision that expanded the definition and scope of joint-employment relationships. The joint employer debate heated up with the ruling from the NLRB that widened the scope of direct or indirect control, which made it easier for corporations to be held liable for workplace violations committed by contractors or franchisees.
► Nevada v. U.S. Department of Labor: Overtime regulations
The U.S. Labor Department will decide by the end of the month if it will appeal a decision from a Texas judge that overturned an Obama-era regulation that doubled the salary threshold for workers eligible for time and a half pay for work over 40 hours a week. Meanwhile, companies are watching carefully to comply with any potential new regulations that will be proposed or whether the Labor Department will continue to fight to uphold the rule passed in 2016. Here's what several big firms in the employment and labor arena had to say about revisions to the Obama-era rules.
► Zubik v Burwell: Birth control and the Affordable Care Act
The Trump administration is moving to allow employers to drop a requirement under the Affordable Care Act to provide contraceptive coverage. Almost immediately, the American Civil Liberties Union sued the U.S. Health and Human Services Department. There's a line of cases, including Zubik v. Burwell, that question whether religious institutions should be exempt under the contraceptive mandate.
Several cases to watch in this category would settle the question of whether sexual orientation should be protected under Title VII of the Civil Rights Act of 1964. Hively v. Ivy Tech in the U.S. Court of Appeals for the Seventh Circuit was a landmark victory for gay rights advocates. The appeals court in April ruled that sexual orientation should be included under federal civil rights law. Two other cases—Evans v. Georgia State Hospital and Zarda v. Altitude Express, fought in the U.S. Court of Appeals for the Eleventh Circuit and for the Second Circuit, respectively—also confronted this question. In Zarda, the U.S. Justice Department and the U.S. Equal Employment Opportunity Commission took opposite sides. The Second Circuit heard arguments in September.
► Edwards v. Nicolai: Gender bias and sex discrimination
A New York state appellate court case presented employment law questions about a woman who was fired by the married owners of a chiropractic center because she made the employer's wife jealous. The New York appellate court reversed a lower court decision and found that jealousy could be considered sex discrimination. The case will return to the trial court.
► Rizo v. Fresno County Office of Education: Prior salary history requirements
This case in the U.S. Court of Appeals for the Ninth Circuit vacated a panel decision that a school district could consider previous salary when setting compensation levels. The full court will consider the question. States and cities around the country are also considering legislation that would restrict a practice that employee advocates contend could institutionalize the gender pay gap.
► T-Mobile USA v. NLRB: Questions about workplace recordings
The U.S. Court of Appeals for the Fifth Circuit enforced an NLRB order that struck down an employer’s policy that banned the use of cameras and other recording devices in the workplace because it could interfere with concerted activities. Questions about the scope of restrictions on workplace recordings persist. The U.S. Court of Appeals for the Second Circuit in June said Whole Foods' no-recording policy violated federal labor law.
► National Labor Relations Board v. Pier Sixty: Social media policies
An employee posted a Facebook post calling his supervisor a “Nasty Mother F*****” and used other profanity. When he was disciplined, he filed an unfair labor claim and ultimately the Second Circuit sided with him that this speech was protected because the post was concerted speech.