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Employment Law Blog

Davenport v. Edward D. Jones & Co., LP, No. 17-30388 (5th Cir. May 22, 2018)

Can a boss's repeated offer of a "big bonus" to a woman employee as an inducement to date an important customer constitute quid pro quo sexual harassment? The Fifth Circuit today holds that it can ... but also holds (2-1) that the plaintiff failed to present a genuine dispute that she was entitled to such a bonus in the first place.

Fassbender v. Correct Care Solutions, No. 17-3054 (10th Cir. May 15, 2018)

An employee fired during her pregnancy should get a Title VII trial, holds the Tenth Circuit, where one of the putative decision-makers reportedly told the plaintiff "[w]hat, you're pregnant too?," and said "I don't know how I'm going to be able to handle all of these people being pregnant at once" and "I have too many pregnant workers, I don't know what I am going to do with all of them."

Faidley v. United Parcel Service of America, Inc., No. 16-1073 (8th Cir. May 11, 2018) (en banc); Snapp v. Burlington Northern Santa Fe Railway Co., No. 15-35410 (9th Cir. May 11, 2018)

ADA opinions released in the Eighth and Ninth Circuits today underscore that the burden of proof, ultimately, is always on the employee to show that the employer failed to provide a reasonable accommodation. These serve as a reminder to disabled employees and counsel that when seeking reassignment as an accommodation, it is vital to request the reassignment clearly and to set one's sights realistically.

Trump Administration Blinks, Revises Tip-Pooling Legislation

In late March, the Trump administration backed off from a proposal that would have effectively given restaurants and other employers the legal right to pocket workers' tips. The U.S. Department of Labor (DOL) announced the proposed rule change last December, saying it would give employers the "freedom to share tips between traditionally tipped and non-tipped workers." It would have rolled back regulations introduced in 2011 by the Obama administration that barred employers from redistributing tips to anyone other than the employees who would normally receive them.

Too often, however, tip-pooling with non-tipped workers becomes wage theft when employers use it as a way to redirect tips to themselves. In the case of the DOL proposal, managers, supervisors and even business owners would have been legally entitled to receive a portion of workers' tips.

Thankfully, the backlash that erupted in response to the proposed change forced the DOL to reconsider the proposal and, ultimately, put forward amendments to the Fair Labor Standards Act (FLSA) that better protect tipped workers.

Kelber v. CareFusion Corp., No. 17‐1206 (7th Cir. Apr. 26, 2018)

The Seventh Circuit creates a split with the Eleventh Circuit, holding that job applicants may bring claims for disparate impact under the ADEA under 29 U.S.C. § 623(a)(2). The panel majority allows a challenge to an employer's classification of an in-house Senior Counsel position as "3 to 7 years (no more than 7 years) of relevant legal experience."

Financial Services Professionals: Why FINRA's Public "BrokerCheck" Makes Negotiating Departures Even More Critical

The financial services industry is built on trust and relationships. Both private and institutional investors place significant monetary sums in the hands of their brokers, financial advisors, and other professionals.
 
Which is why, at first glance, it might seem like a good thing for the Financial Industry Regulatory Authority (FINRA) to make its online BrokerCheck system open to the public. FINRA is an independent, non-profit organization responsible for regulating the securities industry, and the BrokerCheck service is a free tool that allows anyone to research the background and experience of financial brokers, advisors, and firms.

Previously, the information available on BrokerCheck could only be accessed by other FINRA member firms. Now, however, in a bid to protect investors from "bad actors," FINRA has made this information available to anyone with an internet connection.

Rizo v. Yovino, No. 16-15372 (9th Cir. Apr. 9, 2018) (en banc)

In an important decision, the Ninth Circuit holds en banc that a "factor other than sex" under the Equal Pay Act (29 U.S.C. § 206(d)(1)) must be "job-related," and thus rejects an employer's use of pre-employment salary history as a reason to pay a woman less than a man doing the same work. The court overrules its prior decision on this subject, Kouba v. Allstate Ins. Co., 691 F.3d 873 (9th Cir. 1982).

Mys v. Mich. Dep't of State Police, No. 17-1445 (6th Cir. Mar. 28, 2018)

The Sixth Circuit affirms a $350,000 jury award for a police officer who was transferred far from her home, in retaliation for complaining about sex harassment. The court rejects a bid by the department to reduce the award, finding that the jury's calculations of back and front pay - and award of compensatory damages for pain and suffering - are supported by the record.

Penn v. New York Methodist Hospital, No. 16-474 (2d Cir., Mar. 7, 2018); EEOC v. R.G. &. G.R. Harris Funeral Homes, No. 16-2424 (6th Cir. Mar. 7, 2018)

This week, two U.S. Courts of Appeals publish decisions about whether religiously-oriented employers were exempt from Title VII owing to alleged religious-liberty rights: a Methodist hospital wins in the Second Circuit, while a funeral home loses in the Sixth Circuit.

Second Circuit En Banc Panel "Turns the Tide" to Hold that Title VII Recognizes Sexual Orientation Discrimination

In a groundbreaking en banc decision, the Second Circuit became the second appellate court to hold that Title VII recognizes sexual orientation discrimination claims as impermissible sex discrimination per se. Zarda v. Altitude Express, Inc. also expressly overturned the Circuit's prior holdings in Simonton v. Runyon and Dawson v. Bumble & Bumble, deepening a circuit split over the question.

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