John Doran

John Doran

Sherman & Howard L.L.C.

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Ninth Circuit Strikes Class Arb Waivers

The Ninth Circuit Court of Appeals weighed in, today, on the propriety of class action arbitration waivers under the NLRA. The Court held that such waivers violate Sections 7 and 8 of the NLRA in the context of a pending...more

8/23/2016 - Appeals Arbitration Class Action Class Action Arbitration Waivers Collective Actions Corporate Counsel Ernst & Young Federal Arbitration Act FLSA Hiring & Firing NLRA Pre-Employment Agreements Protected Concerted Activity Section 7

3 Severance Agreement Time-bombs

Last week the SEC entered a cease and desist agreement with BlueLinx Holdings, fining the company $265,000.00 for including unlawful confidentiality and waiver provisions in its severance agreements. BlueLinx used a variety...more

8/13/2016 - Cease and Desist Confidential Information SEC Securities Violations Severance Agreements Waivers Whistleblower Protection Policies

5 Keys to New AZ IC Law

We have repeatedly blogged on the Pushmi-Pullyu world of independent contractor relationships, a world in which employers can do no right. (DOL Says Employers Are Morons) Well, Arizona recently enacted a law providing at...more

8/8/2016 - Declaration DOL Employer Liability Issues Independent Contractors Misclassification New Legislation Self-Reporting Wage and Hour

AZ’s Hidden Employer Wage/Hour Gift

Much has been said about AZ Governor Ducey’s recent decision to sign into law HB 2579, which preempts local governments from enacting their own living wage or fringe benefits ordinances for private employers. But next to...more

8/8/2016 - Fringe Benefits Minimum Wage New Legislation Preemption Treble Damages Unpaid Wages Wage and Hour

Texas Keeps Messin’ With EEOC

Yesterday the Fifth Circuit benchslapped the EEOC in a case involving the agency’s criminal history “guidance.” State of Texas v. EEOC, No. 14-10949 (5th Cir. June 27, 2016). We previously blogged about the State of Texas’...more

6/29/2016 - Appeals Article III Criminal Background Checks Criminal Records Disparate Impact EEOC Hiring & Firing Imminent Harm Legitimate State Interest Regulatory Burden Standing Title VII

SCOTUS Gives Fed Contractors Mixed Bag

Last week the U.S. Supreme Court issued an opinion that refines and re-defines liability for contractors accused of defrauding the Federal Government under the False Claims Act (“FCA”) in Universal Health Services, Inc. v....more

6/23/2016 - Conditions of Payment False Claims Act (FCA) False Implied Certification Theory Federal Contractors Fraud Implied Certification Material Misrepresentation Materiality Medicaid SCOTUS Universal Health Services Inc v United States ex rel Escobar Unlicensed Medical Providers

Dol Fumbles…Scotus Punts

On June 20, 2016, the U.S. Supreme Court issued its latest decision (read, “non-decision”) in Encino Motorcars, LLC v. Navarro. The case involves a decades-old question of whether auto dealership “service advisors” are exempt...more

6/21/2016 - Car Dealerships DOL FLSA Navarro v Encino Motorcars SCOTUS Service Advisors Unpaid Overtime Wage and Hour White-Collar Exemptions

Latest NLRB Power-Grab Benchslapped

In another setback for the NLRB, a federal appeals court ruled recently that the NLRB lacks the authority to impose adverse attorneys’ fees awards against employers in Board proceedings. HTH Corporation v. NLRB The case...more

6/3/2016 - Attorney's Fees Enforcement Authority Jurisdiction NLRA NLRB

SCOTUS Gives Plaintiffs Second Apple

Today the U.S. Supreme Court gave would-be plaintiffs not just a second bite at the apple, but an entirely new apple when it comes to Title VII limitations periods. Green v. Brennan. The Court held today that Title VII’s...more

5/24/2016 - Constructive Discharge EEOC Green v Brennan SCOTUS Statute of Limitations Title VII

SCOTUS Dodges EEOC Fee-Shifting

This morning, the Supreme Court dodged the final resolution of an issue we have all been dying to have resolved, but threw a nice bone to employers in the process. CRST Van Expedited, Inc. v. EEOC The case started when the...more

5/20/2016 - Attorney's Fees EEOC EEOC v CRST Van Expedited Fee-Shifting Judgment on the Merits Prevailing Party SCOTUS Sex Discrimination Sexual Harassment Title VII

Prevent Computer Fraud – 1 Tip

In TripleTree, LLC v. Walcker, the employer sued its former employee under the federal Computer Fraud and Abuse Act (“CFAA”) based on the employee’s accessing certain confidential and proprietary information on the company’s...more

5/18/2016 - Computer Fraud and Abuse Act (CFAA) Employee Handbooks Employment Contract

2 Key SCOTUS Spokeo Takeaways

The Supreme Court held this morning that a party suing for a purely technical violation of a statute (in this case, the Fair Credit Reporting Act (“FCRA”)) must demonstrate that he/she has suffered or is likely to suffer a...more

5/17/2016 - Article III Class Action FCRA Injury-in-Fact SCOTUS Spokeo v Robins Standing

5 Keys To Federal DTSA

Yesterday, President Obama signed into law the Defend Trade Secrets Act (“DTSA”). The DTSA essentially federalizes trade secrets law by creating sweeping civil remedies and penalties for theft of trade secrets. Here are five...more

5/12/2016 - Asset Seizure Defend Trade Secrets Act (DTSA) Economic Espionage Act Ex Parte Intellectual Property Protection Misappropriation New Legislation Private Right of Action Trade Secrets Whistleblower Protection Policies

“Biggest Idiot” Meets Class Waivers

The “biggest idiot theory” (our term, not the NLRB’s) states that, when the NLRB reviews an employer’s policy to see whether the policy would “chill” an employee from exercising NLRA rights, the NLRB does so from the...more

12/31/2015 - 24-Hour Fitness Class Action Arbitration Waivers Employer Liability Issues NLRA NLRB Unfair Labor Practices

“Waterboy” a Protected Category

Adam Sandler fans will recall his Oscar-worthy starring role in the movie “The Waterboy,” in which he played a habitually-bullied waterboy for a college football team. Sandler played the part with an extremely pronounced...more

12/28/2015 - Discrimination Protected Class Title VII

SCOTUS Didn’t Eat EEOC’s Homework

Less than two weeks ago, the U.S. Supreme Court agreed to hear a case in which the trial court awarded attorneys’ fees against the EEOC for some $4.7 million. (SCOTUS Benchslap For EEOC On the Way?) While the case is now...more

12/17/2015 - EEOC Fee Awards Mach Mining v EEOC SCOTUS

SCOTUS Benchslaps Cali...Again

Yesterday, the U.S. Supreme Court struck down a California Court of Appeals decision invalidating class action arbitration waivers. DIRECTV, Inc. v. Imburgia, (No. 14-462 December 14, 2015)....more

12/15/2015 - Class Action Arbitration Waivers DirectTV DirecTV v Imburgia Federal Arbitration Act Mandatory Arbitration Clauses Reversal SCOTUS

SCOTUS Benchslap For EEOC On the Way?

In EEOC Silent on Sanctions (August 2013), we reported on CRST Van Expedited, in which a federal district court awarded an employer $4.69 million in attorneys’ fees against the EEOC for the agency’s mishandling of a supposed...more

12/9/2015 - Certiorari Class Action EEOC Employment Discrimination Pattern or Practice SCOTUS

Employment-ish FHA Decision

Amid the headlines of last week’s Supreme Court decisions was one applying disparate impact analysis to claims under the Fair Housing Act “FHA”. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project,...more

7/22/2015 - Affordable Housing Business Necessity Disparate Impact Employment Discrimination Fair Housing Act (FHA) Pleadings SCOTUS Summary Judgment Tax Credits Texas Dept of Housing v Inclusive Communities

Supremes Tell States Gay Marriage is Legal

Recently, the U.S. Supreme Court struck down state laws the prohibit gay marriage in Obergfell v. Hodges, No. 14-556 (June 26, 2015), First, the Court held that the Fourteenth Amendment requires a State to license a marriage...more

7/22/2015 - Employee Benefits Equal Protection FMLA Fourteenth Amendment Income Taxes Obergefell v. Hodges Pensions Same-Sex Marriage SCOTUS

DOL Says Employers Are Morons

Okay, that’s not what the DOL said exactly. But the DOL did say today that companies far and wide are just wrong on which workers are employees and which are independent contractors for purposes of the FLSA. In an...more

7/17/2015 - Broadest Reasonable Interpretation Standard DOL FLSA Independent Contractors Misclassification Wage and Hour

Supremes Say Abercrombie Not So Hip

The U.S. Supreme Court just issued its much-awaited religious discrimination decision in EEOC v. Abercrombie & Fitch, 575 U.S. ___ (June 1, 2015) (No. 14-86). Samantha Elauf applied for a job with A&F and was denied the job...more

6/30/2015 - Abercrombie & Fitch Dress Codes EEOC EEOC v Abercrombie Hiring & Firing Job Applicants Religious Accommodation Religious Clothing Religious Discrimination SCOTUS Title VII

Supreme Benchslap for EEOC

Title VII requires the EEOC to engage in “conciliation” once it issues a cause determination. The EEOC’s unique approach to conciliation, which typically is totally divorced from anything conciliatory, is the subject of this...more

4/30/2015 - Conciliation Discrimination EEOC Employer Liability Issues Mach Mining v EEOC Mining SCOTUS Sex Discrimination Title VII

Will EEOC’s New Wellness Regs Make You Sick?

The EEOC has broadcast proposed regulations on wellness programs. In short, the proposed regs attempt to reconcile Obamacare provisions encouraging wellness programs, the ADA’s approval of medical examinations that are truly...more

4/20/2015 - ADA Affordable Care Act EEOC Employer Liability Issues Hiring & Firing Medical Examinations Pre-Employment Health Screenings Proposed Regulation Screening Procedures Wellness Programs

Don’t Go Break-rooming My Heart

Being a hospital maintenance worker is grueling. Just ask Darrell Allen, who worked for Atrium Medical Center. His job was so taxing that he created a secret break-room for himself in one of the hospital’s air handling rooms....more

4/20/2015 - Hiring & Firing Hospitals Termination

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