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Tibble v. Edison Int'l, No. 13-550 (U.S. May 18, 2015)

The Supreme Court - presented with a simple question about ERISA's fiduciary-duty statute of limitations (29 U. S. C. § 1113) - lays the foundation for a potential new round of litigation about how strictly and often plan fiduciaries must monitor the performance of their retirement investment plans. The Court, without dissent, agrees that there is no set-it-and-forget-it rule for fiduciaries.  

International Lawyers as Clients

On May 7, at the ABA Midyear Meeting of the Section of Labor and Employment Law, the International Committee presented a panel-- "Restrictive Covenants and Labor Mobility: A Case Study of Non-Competes, and Choice-of-Law Provisions, in the Legal Profession."

Employee rights firm Outten & Golden awards non-profit "Adhikaar" for assisting immigrant workers

Outten & Golden LLP is pleased to announce that Adhikaar will be the 2015 recipient of the annual O&G Public Interest Award, on May 20, 2015.  The Award comes with a $10,000 grant to support this unique organization's work in assisting the growing community of Nepali-speaking immigrants and protecting the rights of the most vulnerable groups in the New York City area.

Castro v. DeVry University, Inc., No. 13-1934 (7th Cir. May 13, 2015)

The Seventh Circuit offers some clarification for practitioners about some finer points of evidence and party declarations in the context of summary judgment. The panel reverses and remands for trial one plaintiff's claim (out of three) for Title VII retaliation. In particular, the court warns that under Federal Rule of Evidence 803(6), "[t]he mere act of producing a document in response to a discovery request based on the content of the document does not amount to an admission of the document's authenticity." (Italics in original.)

Brown v. Nucor Corp., No. 13-1779 (4th Cir. May 11, 2015)

The Fourth Circuit for a second time holds that a district court erred in refusing class certification in a Title VII (and § 1981) case involving denial of promotion on the basis of race. Six years ago, a 2-1 panel ordered certification of a class of black employees denied promotions. Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009). Another 2-1 panel, with two of the same judges authoring the majority and dissenting opinions (totaling 154 pages!), today reverses the decertification of the same class.

Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (4th Cir. May 7, 2015)

The Fourth Circuit en banc finally undoes an enduring wrong by overruling Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), and holding that an employee remains protected by Title VII's anti-retaliation section (and § 1981) when complaining about race harassment, even if the offending conduct has not yet ripened into a hostile work environment.

Wheat v. Fifth Third Bank, No. 13-4199 (6th Cir. May 7, 2015)

When two employees fight, employers face the challenge of making the discipline fit the crime - and, also, avoiding racial or other bias. The Sixth Circuit calls out management in one such case today, concerning a black plaintiff fired supposedly for engaging in a fight, while the white employee in the same fight was disciplined only belatedly.

Mach Mining LLC v. EEOC, No. 13-1019 (U.S. Apr. 29, 2015)

The Supreme Court unanimously holds that a lawsuit commenced by the EEOC cannot be dismissed simply based on an employer's argument that the agency did not try hard enough to conciliate the claim before filing under 42 U.S.C. § 2000e-5(b). The Court spells out the limited proof permitted on a defense of non-exhaustion, and concludes that the remedy is not dismissal, but instead remand to the agency for further settlement efforts. This decision ends a longstanding split among federal courts on this issue, deciding mostly in favor of the EEOC.

EEOC v. New Breed Logistics, No. 13-6250 (6th Cir. Apr. 22, 2015)

The Sixth Circuit chalks up a big win for the EEOC, affirming a jury verdict for four employees awarding compensatory and punitive damages totaling over $1.5 million. The court upholds the rule that telling a sexually-harassing supervisor to cut-it-out is protected "opposition" activity under Title VII, and will support a claim for retaliation. The opinion also highlights the kind of trouble employers can get into when they fail to treat temporary employees as a full-fledged part of the workforce.

EEOC Affirms Right to Gender-Appropriate Bathrooms and Pronouns for Transgender Employees

On April 1st, the EEOC issued a groundbreaking ruling that found that the Army discriminated against a transgender civilian employee by denying her access to the women's restroom and created a hostile work environment by allowing a supervisor to intentionally misuse her former name and male pronouns.

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