Here's a timely reminder to include a prayer for nominal damages in Title VII and ADA complaints. At least in some circuits, including the Ninth, such relief is deemed equitable and thus may protect a claim from being mooted by intervening changed circumstances. That little toehold for $1.00 in damages may be the difference between outright dismissal and prevailing-party status.
Activists seized on Wells Fargo's annual shareholder meeting this week to press the bank for changes to a wide range of alleged unfair practices. As the country's fourth-largest bank, Wells faces backlash from a scandal involving up to two million accounts opened without customer authorization, as well as related allegations of employment law violations - including firing whistleblowers who refused to participate in fraudulent account openings. Activists mobilizing around the Forgo Wells campaign, among others, have condemned the bank's use of forced arbitration clauses in customers' and employees' contracts, which obstruct many of these issues from coming to light because they prevent employees and consumers from banding together and taking Wells to court.
For many workers, signing an employment contract with a confidentiality, non-disclosure, non-competition, or non-solicitation clause is a necessary part of accepting and keeping a job. What they don't anticipate, however, is that those provisions can be leveraged against them to restrict employees' rights to challenge unlawful practices and find other work, placing their livelihoods and future employment in jeopardy.
Last week, the U.S. Seventh Circuit Court of Appeals struck a blow to employers that require their employees to waive their right to bring class and collective actions to remedy wage and hour violations, finding these waivers violate the National Labor Relations Act's right to engage in "concerted activities" to improve workplace conditions.
A federal district court judge in San Francisco issues a blockbuster opinion holding Uber's arbitration policy with its drivers unenforceable under California law. The court holds that the policy - imposed by way of a cell-phone clickbox screen - created a one-sided forum for resolution of legal disputes.
Arbitration is a common, employer imposed method for resolving employment conflicts without going to court. However, Outten & Golden Partner Wendi Lazar suggests that when an employee is forced by contract to arbitrate rather than sue, arbitration becomes a means for employers to suppress the rights their employees would be entitled to in court.
Clearing up some confusion among the lower federal courts, the Sixth Circuit confirms that the Labor-Management Relations Act (LMRA) § 301 does not supersede an employee's federal statutory right to file a civil action to remedy a violation of her rights under the ADA.
The Fifth Circuit, applying 14 Penn Plaza LLC v. Pyett, 556 U.S. 249 (2009), holds that the UPS collective bargaining agreement did not "clearly and umistakably" waive a driver's right to commence a Title VII sex discrimination suit.
Owing to a tactical decision by the defendant and some inopportune drafting, a panel of the First Circuit holds (2-1) that an arbitration clause tacked onto an employment application did not apply to a person who interviewed for a job but was never hired - allegedly because she was eight months' pregnant at the time.
The Financial Industry Regulatory Authority (FINRA) announced on January 25, 2012 that it fined brokerage house Merrill Lynch, Pierce, Fenner & Smith $1 million for requiring employees to resolve disputes relating to "retention bonuses" in New York state courts. The FINRA rules require its member firms and their employees to arbitrate such disputes in FINRA arbitration.