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DOJ/FTC Publication Empowers Workers by Taking Aim at No-Poaching Agreements

In apparent support of U.S. workers and economic realities, the Antitrust Division of the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) recently issued guidelines for human resources professionals regarding anti-competitive hiring practices.

Citing the advantages of competition to our economy, the guidance demonstrates the agencies' view that "firms that compete to hire or retain employees are competitors in the employment marketplace, regardless of whether the firms make the same products or compete to provide the same services," and that express or implicit agreements between companies to not compete for workers, even if driven by cost-reduction objectives, violate federal antitrust laws.

Deschamps v. Bridgestone Americas, No. 15-6112 (6th Cir. Oct. 19, 2016)

An employer that deliberately, or with gross negligence, misinforms employees about potential retirement benefits - inducing them to remain with the company - may find itself on the hook to compensate those employees for lost opportunities. In this case, the Sixth Circuit affirms an ERISA judgment against a manufacturer and its retirement plan for equitable estoppel, breach of fiduciary duty, and an anti-cutback violation of ERISA.

New Massachusetts Law Offers Example of How States Can Address Pay Inequity

In August 2016, a bipartisan Massachusetts legislature and a Republican governor unanimously enacted a new pay equity law aimed at ensuring equal compensation and benefits for male and female employees in similar positions performing similar work. In addition to a general prohibition against pay discrimination, the Act includes some innovative provisions that provide examples for other states to follow in the ongoing campaign against pay inequity.

Cazorla v. Koch Foods of Mississippi, LLC, No. 15-60562 (5th Cir. Sept. 27, 2016)

Undocumented workers are entitled to protection under Title VII and other federal employment laws, but many fear filing charges and lawsuits because they risk exposure, termination, and deportation. The Fifth Circuit addresses the delicate balance between the public interest in enforcing anti-discrimination laws and the right of an employer under federal discovery procedures to obtain evidence that is potentially important to its defense.

Paid Parental Leave Has Broad Business and Economic Benefits

As noted by Vogue Magazine, August marked the 23rd anniversary of the federal Family and Medical Leave Act. Though considered landmark legislation at the time, the law only provides for unpaid leave, and does not apply to a large percentage of Americans employed by companies with fewer than 50 employees. Seeking to correct this situation, four states - California, New Jersey, Rhode Island and New York - now have paid leave laws. Even in those states, however, there remain gaps, particularly when it comes to job protection.

Despite progress, the United States retains its regrettable title as the only major developed country in the world not to offer all workers paid parental leave.

Ernst v. City of Chicago, No. 14-3783 (7th Cir. Sept. 19, 2016)

It's rare for a federal court of appeals to toss a defense jury verdict in an employment-discrimination case, and rarer still for the panel to order entry of a judgment in favor of a plaintiff. Yet both things happened in yesterday's Seventh Circuit decision, which held that a group of female paramedic applicants proved they were unlawfully screened out of employment due to an unreliable physical-skills entrance examination.

Lawler v. Peoria School District No. 150, No. 15-2976 (7th Cir. Sept. 16, 2016)

One way that employers go wrong under disability-discrimination laws is writing off an employee with diagnosed mental disabilities as simply a difficult personality or a poor "fit" for the job. Here, a special-education teacher with post-traumatic stress disorder (PTSD) - who was denied a transfer to a less-stressful position and fired for supposedly creating "so much unnecessary drama" with co-workers - will have a trial, thanks to a recent Seventh Circuit decision.

EEOC v. Catastrophe Management Solutions, No. 14-13482 (11th Cir. Sept. 15, 2016)

May an employer deny employment to a Black applicant who would not cut her dreadlocks? A decision by the Eleventh Circuit yesterday goes to the very core of the anti-discrimination statutes: what does it mean to discriminate in employment on the basis of "race"? The panel unfortunately holds that "race" under Title VII is limited to "immutable" physical characteristics, rather than cultural and other traits associated with race. In so doing, it potentially creates a rift between two major federal race-discrimination statutes, Title VII and § 1981.

Smith v. LexisNexis Screening Solutions, No. 15-2329 (6th Cir. Sept. 13, 2016)

The Sixth Circuit reviews and affirms a $75,000 jury verdict for a job applicant whose employment background check was negligently performed, but vacates an award for punitive damages, under the Fair Credit Reporting Act (FCRA). The case involves a scenario where an applicant's common first and last names triggered a false criminal report.

WARN Act Protects Laid off Employees of Companies in Bankruptcy

Being laid off is likely one of the most stressful events employees and their families will face. It means looking for a new job and wrestling with the financial uncertainty that comes with being out of work.

Recognizing this, Congress passed the Worker Adjustment and Retraining Notification (WARN) Act in 1988. This federal law requires companies with 100 or more full-time employees to give written notice 60 days before a mass layoff or plant closing, and thus provides laid-off workers two months to try and find a new job while still employed. If a company fails to give this notice, employees are entitled to up to 60 days of back pay and benefits. WARN protects many types of workers, including those paid hourly or on salary, as well as managers and supervisors.

But what if a company announces a layoff and then immediately files for bankruptcy? Employees may worry they have now lost out on the notice period - and the income that goes with it.

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