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January 2016 Archives

Navigating the Fissured Workplace: New Guidance from the DOL on Joint Employment

Last Wednesday, the Department of Labor issued guidance to clarify employees' rights and employers' obligations in an increasingly fragmented workplace. The Department of Labor Administrator's Interpretation (AI) No. 2016-1 addresses Joint employment under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Beyond Ban the Box - Combating Black Underemployment and the Criminality Myth

Ban the Box legislation is an incredibly important tool in fighting black underemployment by removing employers' ability to use criminal history as a proxy for discrimination. However, it only attacks a symptom of the problem of race discrimination in hiring: criminal history is not the only way that employers use "race-neutral" criteria a proxy to discriminate against black job seekers. A holistic approach that acknowledges the omnipresent role that the black criminality myth continues to play in employment discrimination - and daily life in general - is necessary. 

Glatt v. Fox Searchlight Pictures, Inc., No. 13-4478 (2d Cir. Jan. 25, 2016)

The Second Circuit yesterday filed an amended opinion in the Fox Searchlight Black Swan unpaid-intern case (a case filed by Outten & Golden). In response to a petition for rehearing, the panel upholds its original decision - vacating class certification and partial summary judgment for the class - yet made significant changes to its original reasoning that will enable unpaid-intern cases to proceed.

Connelly v. Lane Construction Corp., No. 14-3792 (3d Cir. Jan. 11, 2016)

The Third Circuit issues a solid reminder to judges that - notwithstanding the increased attention on filing "plausible" complaints under Federal Rule of Civil Procedure 8 - federal courts do not require the pleading of legal theories. Thus, plaintiffs are not required to specify the method that they plan to use to prove discrimination cases in their Title VII complaints.

Nichols v. Tri-National Logistics, Inc., No. 15-1153 (8th Cir. Jan. 4, 2016)

In the first-published federal court of appeals EEO decision of 2016, the Eighth Circuit  (in a 2-1 decision) reverses summary judgment in a sex harassment case. The plaintiff - a woman truck driver - was forced to share close quarters with a male co-worker for a week-long trip. The panel majority holds that a jury could find that the employer could have taken greater steps to prevent the harassment. 

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