Bill Wright

Bill Wright

Sherman & Howard L.L.C.

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FCRA Disclosure Revisited

In these unsettled days of a new administration, it is almost soothing to see the courts focus on statutory language alone. Almost. The Fair Credit Reporting Act (“FCRA”) requires that, before a prospective employer (or...more

1/26/2017 - Class Action Consumer Reporting Agencies Disclosure Requirements Employer Liability Issues FCRA Indemnification Clauses Statutory Violations Waiver of Liability Willful Violations

Site-Specific Disability?

Does the ADAAA allow an employee to claim that she is disabled-in-a-particular-place or with-a-particular-supervisor, and otherwise not disabled? A California federal court judge opened the door to such claims by denying...more

1/18/2017 - ADAAA Disability Discrimination Employee Relocations Employer Liability Issues Reasonable Accommodation Social Anxiety Disorder

SCOTUS To Decide Class Action Waivers

The Supreme Court has agreed to resolve the simmering dispute between the NLRB and (essentially all) employers over class action waivers. The NLRB has maintained in a number of cases that employers may not enforce arbitration...more

1/17/2017 - Certiorari Class Action Class Action Arbitration Waivers Collective Actions Epic Systems Corp v Lewis Ernst & Young Federal Arbitration Act Murphy Oil USA NLRA NLRB SCOTUS

Disparate Impact Threat Can Set Policy

A recent disparate impact claim over drug testing sets the stage for participants to dictate improvements in employer policies. In Jones et al v. Boston, No. 15-2015 (1st Cir. Dec. 28, 2016), the court considered claims by...more

1/5/2017 - Alternative Methods Business Necessity Disparate Impact Drug Testing Employment Policies Police

DOL Brief Argues Against Injunction

As we all know, a federal judge blocked the Final Rule from the Department of Labor (“DOL”) that would have roughly doubled the salary threshold for executive, administrative and professional exempt employees. Now, the DOL...more

12/16/2016 - Appeals DOL Preliminary Hearings Preliminary Injunctions White-Collar Exemptions

Succession Planning Not Discriminatory

A federal district court has ruled that instructing an HR Director to “adapt to bring out the best in our new and younger employees” was not evidence of age-based harassment. Vontlintel v. Eagle Comm., Inc. No....more

12/15/2016 - Age Discrimination COOs Human Resources Professionals Succession Planning

Stuck in Cape Town Again

By creatively patching together scheduled days off, vacation days, and personal holidays, and then switching a shift, the plaintiff put together 21 days off. Unfortunately, he was still scheduled for one shift right in the...more

11/3/2016 - FMLA FMLA Abuse Holiday Pay Human Resources Professionals Internal Investigations Paid Leave Reasonable Suspicion Retaliation Summary Judgment Vacation Pay Wrongful Termination

Website Sorts Worker Complaints

The administration is beta-testing a new on-line tool at http://worker.gov. The site lets the user select on a job title (from a slowly expanding list) and then click to a menu of various violations of labor and employment...more

11/1/2016 - Complaint Procedures Hiring & Firing Labor Law Violations Unfair Labor Practices Wage and Hour Websites

FWW Under Attack

As employers prepare for the Department of Labor’s new salary threshold for executive, administrative and professional exempt employees, many turn to the Fluctuating Work Week (FWW) method of calculating overtime pay. Under...more

10/25/2016 - DOL Exempt-Employees Flexible Work Arrangements FLSA Non-Exempt Employees Over-Time Wage and Hour White-Collar Exemptions

Drivers For All Seasons

An Arizona-based employer filed for H-2B visas for seasonal low-skilled drivers. The season for the application was 9 months: Fall-Winter-Spring, based on the growing season and the season of high volume sales for produce....more

10/20/2016 - BALCA DOL Drivers H2-B Visas Seasonal Workers

California Bans Out-of-State Law

California has passed a novel piece of employment law. New section 925 of the California Labor Code prohibits employers from requiring employees to sign an agreement that (a) forces the employee to litigate or arbitrate...more

10/4/2016 - Arbitration Arbitration Agreements Attorney's Fees Choice-of-Law Contract Terms Employment Contract Forum Selection New Legislation Venue

HR Abdicates Control

The Second Circuit Court of Appeals recently taught employers what can happen when Human Resources abandons an investigation half-way through. In Vasquez v. Empress Ambulance Serv., Inc., No,. 15-3239-cv (2d Cir. Aug. 29,...more

9/2/2016 - Employer Liability Issues Hiring & Firing Human Resources Professionals Internal Investigations Sexual Harassment Wrongful Termination

NLRB Classifies TAs as Employees

The NLRB chose not to interfere with collegiate football. Northwestern University, Case 13-RC-121359 (August 17, 2015). Collegiate teaching assistants, though, are another thing. In Columbia University, Case 02-RC-143012...more

8/24/2016 - Collective Bargaining Colleges Graduate Students NLRB Scientific Research Students Teaching Assistants Unions Universities

Transgender Claim Meets Dress Code

The worlds of transgender versus religious rights collided hard recently when an EEOC action on behalf of a discharged transgender worker ran full force into a Religious Freedom Restoration Act (“RFRA”) defense, and the EEOC...more

8/23/2016 - EEOC Free Exercise Gender Discrimination Gender Identity Hiring & Firing LGBT RFRA Sexual Orientation Discrimination Termination Title VII Transgender

Staffing Company Has to Ask

The Fifth Circuit Court of Appeals expanded on the EEOC’s guidance on a staffing company’s liability for its client’s discriminatory decisions. According to the court, a staffing company may be liable when a client asks the...more

7/25/2016 - Age Discrimination Corporate Counsel EEOC Hiring & Firing Joint Employers Staffing Agencies Wrongful Termination

En Garde “User Employers”

The NLRB has reversed course on another issue significantly affecting employer relationships – not just relationships with employees, but also relationships with employee leasing companies. In Miller & Anderson, Inc., 364...more

7/13/2016 - Bargaining Units Joint Employers NLRB Staffing Agencies Temporary Employees Unions

Enforcing Persuader Rule Enjoined

The U.S. District Court for the Northern District of Texas has enjoined the Department of Labor from enforcing its new Persuader Rule. In the Persuader Rule, the DOL reversed its position on when attorneys who provide...more

6/28/2016 - Attorney-Client Privilege DOL Injunctions Persuader Rules Trade Associations

California Rules!

California’s new regulations concerning employment discrimination come into effect soon. Briefly, they require beefy policies and supervisor training concerning reporting discrimination and harassment. Naturally, they include...more

3/9/2016 - Gender Discrimination Human Resources Professionals New Regulations Sexual Orientation Discrimination

Common-Law Employee, But No Contract

In Faush v. Tuesday Morning, Inc., No. 14-1452 (3d Cir. November 18, 2015), the court addressed race discrimination claims brought by a former temporary worker against the company he was assigned to assist. The plaintiff...more

11/25/2015 - Dismissals Race Discrimination Staffing Agencies Temporary Employees Title VII

Handbook Revisions Due

The U.S. Court of Appeals for the District of Columbia sided with the NLRB on 3 common employer policies. These rules violate the NLRA on their face...more

11/10/2015 - Confidentiality Agreements Electronic Communications Employee Handbooks NLRA NLRB

EEOC to Pay One Mmmillion Dollars

In EEOC v. Global Horizons, Inc. et al., No. CV-11-3045-EFS (E.D. Wash.), the court determined that the EEOC had conducted a shoddy administrative investigation and lacked a factual basis to pursue its theory of...more

10/2/2015 - Attorney's Fees EEOC Frivolous Lawsuits Government Investigations Joint Employers Title VII

Curing Cat’s-Paw

In a Title VII retaliation claim, a plaintiff has to prove protected conduct was the “but-for” cause of the materially adverse action. Can a plaintiff prove “but-for” causation relying on the supposed retaliatory animus of...more

9/29/2015 - Bias But For Causation Cat's Paw Retaliation Title VII

FCRA Tip: Keep Hands On

A federal trial court will conduct a trial on a Fair Credit Reporting Act claim because the employer streamlined its background check system. In this case, a bank used a third party service provider to conduct background...more

8/28/2015 - Adverse Employment Action Background Checks Banks FCRA Hiring & Firing Notice Requirements Third-Party

Board Penalizes Legal Argument

Previously, we described a court’s reaction when some plaintiff-employees tried to reinstate their collective wage claim in court using a belated NLRB order against class action arbitration waivers. (See: Court Order Trumps...more

8/27/2015 - Arbitration Class Action Arbitration Waivers Collective Actions NLRA NLRB Penalties Unpaid Wages Wage and Hour

The NLRB Chooses Not to Play

The NLRB has ruled on the representation petition for Northwestern University student football players. You’ll remember, last year, the NLRB’s Regional Director decided that student athletes who received grant-in-aid athletic...more

8/18/2015 - College Athletes Football NLRA NLRB Northwestern University Unions

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