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DOL Provides Guidance on Pandemic Emergency Unemployment Compensation Program

Over the past three weeks, 16 million unemployment claims have been filed, and more are on the horizon. As questions and concerns surrounding unemployment benefits continue, so does guidance from the U.S. Department of Labor (DOL). In a recent Unemployment Insurance Program Letter (UIPL), the DOL's Employment and Training Administration (ETA) provided further clarification concerning the Pandemic Emergency Unemployment Compensation (PEUC) program. The PEUC has left employers wondering whether or not their respective state—or the federal government—will require repayment of the benefits provided under the PEUC. More ›

"Waiting is Still an Occupation" But Not a Compensable One

In a recent summary judgment decision, the Eastern District of Wisconsin held that time spent by employees of staffing agencies both waiting for a job assignment and traveling to the job assignment if they were selected is not compensable time under the Fair Labor Standards Act (FLSA) and Wisconsin's Wage Payment and Collection Laws (WWPCL). The court's decision serves as a reminder for employers and employees alike that not all time spent by an employee for the benefit of, or required by, the employer is compensable time. More ›

DOL Issues OSHA Information to Help Reduce Coronavirus Exposure in the Workplace

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has issued a new poster—available in English or Spanish—which lists steps workplaces can take to reduce their risks of coronavirus exposure. This release is the latest effort by OSHA to educate and protect America's workers and employers during the pandemic. We outline their recommended infection prevention measures highlighted in the poster below. More ›

DOL Clarifies Unemployment Benefits in New Letters

Over the last few weeks, employers across the county have had to grapple with an onslaught of new legislation at both the state and federal level. As part of its implementation of the new federal employment law mandates, the U.S. Department of Labor (DOL) has provided two new Unemployment Insurance Program Letters (UIPL) concerning unemployment benefits. We explore the DOL's guidance below. More ›

U.S. Supreme Court Holds Section 1981 Racial Discrimination Claims Require But-For Causation

In a unanimous decision issued on March 23, 2020, the United States Supreme Court held that a but-for causation standard applies to claims brought under Section 1981 of the Civil Rights Act of 1866. The Supreme Court also noted that this standard applies throughout the litigation process, including the initial pleading stage.

The Civil Rights Act of 1866, a Reconstruction-era statute, includes Section 1981, which guarantees "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." In Comcast Corp. v. National Association of African American-Owned Media, the plaintiff pursued a number of theories, but essentially argued that the Court should adopt the motivating factor test employed in cases arising under Title VII of the Civil Rights Act of 1964. Employment law practitioners often will see complaints including counts for both violations of Title VII and Section 1981. It is important to recognize that the causation standards are different for these two statutes. More ›

Ninth Circuit Rules That Gender-Based Pay Disparity Cannot Be Justified With the Use of Past Earnings

Nearly 60 years after the passage of the Equal Pay Act of 1963, we find that the gender pay gap is not only alive and well, but also remains a subject of controversy. This was apparent in the Ninth Circuit's ruling in Aileen Rizo v. Jim Yovino, which we've been following since the Ninth Circuit heard the case. This is the highest-profile court to address the use of salary history—and its intersection with the Equal Pay Act—in the employment setting. More ›

NLRB Announces Final Joint Employer Rule

Following in the footsteps of the U.S. Department of Labor, the National Labor Relations Board (NLRB) announced its Final Rule regarding joint employment. While the NLRB rarely engages in rulemaking, it deemed it necessary in this instance to provide clarity and predictability regarding joint employment. Effective April 27, 2020, the Final Rule rescinds the current test which went into effect in 2015 and reverts back to the prior analysis. This impacts all employers, particularly in the context of collective bargaining, staffing companies, and franchisers. More ›

District Court Permits Walmart to "Rollback" Job Offer Because of Undue Hardship from a Religious Accommodation

The U.S. District Court for the Western District of Wisconsin recently addressed an employer's responsibilities to accommodate an employee's religious beliefs. In EEOC v. Walmart Stores East, LP, the court examined whether Walmart was required to accommodate a candidate for an assistant manager position who informed Walmart—after he received his offer—that he could not work on Saturdays due to his religion. Walmart ultimately withdrew the offer of employment, but offered the employee the opportunity to seek a non-management position as well as the assistance of human resources in his job search. The employee refused Walmart's offer and asserted claims of religious discrimination and retaliation under Title VII. More ›

New Statutory Framework Mandated for Employers Seeking to Limit Notice to Putative Class Members in an Enforceable Arbitration Agreement

The United States Court of Appeals for the Seventh Circuit recently articulated a new statutory framework for determining whether notice to a putative plaintiff should be issued under the Fair Labor Standards Act (FLSA). At issue was whether a district court may authorize notice to potential plaintiffs who had entered into arbitration agreements waiving the right to participate in a collective action; or in the alternative, whether these employees are “similarly situated” to a plaintiff that has not waived their right to participate in a collective action. More ›

Federal Court Allows ADEA Disparate Impact Claims over Employer Policies to Proceed

Ever since the Supreme Court's 2005 decision in Smith v. City of Jackson, plaintiff employment lawyers have struggled with how best to assert a viable claim of disparate impact age discrimination. The concept of disparate impact discrimination was recognized by the Supreme Court decades ago in Griggs v. Duke Power, which established that Title VII of the Civil Rights Act of 1964 made it unlawful—even if facially neutral—for employer practices to have a materially adverse impact on a protected group, unless the neutral practice is supported by business necessity. More ›

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