Author: Susan L. Nardone

Courts Send Signal That Care in Drafting Arbitration Provisions is Key

Two recent decisions, one by the Third Circuit Court of Appeals and the other by the New Jersey Appellate Division, offer some interesting insight into the validity and viability of arbitration clauses that send employment-related disputes and claims out of the court system and into arbitration. In Moon v. Breathless, the Third Circuit Court held that an arbitration provision in an exotic dancer’s independent contractor agreement did not encompass her statutory FLSA and state wage-and-hour claims. Appellant Alissa Moon (“Moon”), a dancer at Breathless Men’s Club (“the Club”), filed a putative collective and class action against the Club in the District of New Jersey alleging violations of the Fair Labor Standards Act, the New Jersey Wage Payment Law and the New Jersey Wage and Hour Law. The Club moved to dismiss based upon an arbitration provision contained in the Independent Dancer Rental Agreement (the “Agreement”) that Moon signed. The Agreement also contained a provision stating Moon was an independent contractor and not an employee. The District Court denied the Club’s motion to dismiss and directed the parties to engage in limited discovery on whether Moon’s claims were subject to a valid arbitration provision. Following discovery, the District Court found that Moon’s claims fell within the scope of the Agreement’s valid arbitration provision and granted the...

Federal DOL Rescinds Joint Employer and Independent Contractor Guidance

On June 7, 2017, the U.S. Department of Labor (“DOL”), Wage and Hour Division (“WHD”), announced that it was rescinding two significant and heavily-criticized Obama-era Administrator’s Interpretations, the first on joint employer liability under the Fair Labor Standards Act, 29 U.S.C. § 1801 et seq. (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 201 et seq. (“MSPA”) (the “Joint Employer AI”), and the second on independent contractor misclassification under the FLSA (the “Independent Contractor AI”). In its June 7th statement concerning the rescissions, the DOL made its intentions clear: Removal of the two administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act or Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the Department’s long-standing regulations and case law. The Department will continue to fully and fairly enforce all laws within its jurisdiction including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. Although neither AI constituted a legal precedent, the January 2016 Joint Employer AI presented the DOL’s analysis of the joint employer principles under caselaw interpreting the FLSA and the MSPA. Gibbons issued an alert about the Joint Employer AI when it was first published. The underlying caselaw is not affected by the DOL’s withdrawal...

The Walls Have Ears: NLRB Invalidates Employer’s Prohibition on Recording in the Workplace

Whole Foods Markets received the proverbial ugly holiday sweater in the form of a December 24, 2015, 2-1 decision by the National Labor Relations Board that declared its policy prohibiting recording in the workplace unlawful. The decision in the cases Whole Foods Markets, Inc. and United Food and Commercial Workers Local 919 and Workers Organizing Committee of Chicago, focused on two rules contained in Whole Foods’ General Information Guide. The first prohibited the recording of meetings, with the laudable, express goals of encouraging “open communication, free expression of ideas, spontaneous and honest dialogue and an atmosphere of trust.” The only exceptions were when the recording was approved by management or all parties to the conversation consented. The second rule also prohibited the use of a recording device in order to “eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.” Seems fair, right? Not according to the NLRB.

What to Expect from the EEOC in 2013

At the Gibbons Second Annual Employment & Labor Law Conference last month, one panel discussion focused on the Equal Employment Opportunity Commission’s (“EEOC”) recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.

A Bad “Day” for a Company Whose In-House Attorney Failed to Properly Preserve Relevant Documents

An Arizona federal court has determined that default judgment, an adverse instruction and monetary damages are proper remedies for in-house counsel’s failure to take the proper steps to preserve potentially relevant evidence after receiving notice of potential litigation. In Day v. LSI Corporation, Docket No. CIV-11-186-TUC-CKJ, the United States District Court for the District of Arizona granted, in part, the plaintiff-employee’s motion for entry of a default judgment and imposed additional sanctions against the defendant-employer, concluding that the employer’s in-house attorney had a “culpable mind” and acted willfully in failing to carry out the company’s preservation obligations.

The New EEOC Guidance Regarding Criminal Background Checks

On Wednesday, April 25, 2012, the Equal Employment Opportunity Community issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, updating and clarifying its prior guidance on the subject. The good news? Employers may continue to use criminal background checks as a screening tool for applicants and employees. However, employers are specifically discouraged from asking about a criminal record on the application and are encouraged to conduct an individualized assessment of the applicant/employee when job exclusion occurs because of a criminal record. Employers should review their policies to ensure compliance with the EEOC’s latest recommendations.

Third Circuit Finds That Failing to Produce Original Documents May Constitute Sanctionable Spoliation

Although in recent years employers have become increasingly focused on the preservation, discovery and production of electronically-stored information, the Third Circuit’s January 4, 2012 decision in Bull v. United Parcel Service serves as a reminder to companies that original documents can and often do play a critical role in employment litigation matters. The preservation and discovery of originals should not be overlooked. Employers should be certain to both request original documents in discovery (and pursue their production through motion practice as necessary) and take necessary steps to preserve originals when litigation is threatened or commenced.

Third Circuit Decides First Cat’s Paw Case Post-Staub

On August 17, 2011, the Court of Appeals for the Third Circuit rendered its decision in McKenna v. City of Philadelphia, the first significant cat’s paw theory case out of the Third Circuit since the United States Supreme Court’s March 2011 decision in Staub v. Proctor Hospital, which was the subject of a previous Employment Law Alert post. The Staub decision addressed the circumstances under which an employer can be held liable for the discriminatory or retaliatory animus of a nondecisionmaker – often referred to as the “cat’s paw” theory. The primary issue in McKenna was whether an intervening act between the alleged retaliatory conduct and the employee’s termination – a hearing before a neutral board – was sufficiently independent to break any causal link between the allegedly retaliatory act and the employment action. Based upon the underlying facts of this particular case, the Court determined that it was not.

New Jersey Appellate Division Holds That Absence of Emotional Distress Damages Award Does Not Preclude Consideration of Punitive Damages

The New Jersey Appellate Division recently held in Rusak v. Ryan Automotive, LLC that a plaintiff was entitled to further proceedings on her punitive damages claim following a jury verdict in her favor on her hostile work environment and retaliation claims even though the jury did not award her emotional distress damages and rejected her separate intentional infliction of emotional distress claim. Although the case involved unique circumstances that are unlikely to be present in future matters, the decision serves as a reminder that the absence of an emotional distress award does not preclude further proceedings on punitive damages.