On March 3, 2022, President Biden, as expected, signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”) into law. As we previously explained, the Act amends the Federal Arbitration Act (FAA) to make pre-dispute arbitration agreements for sexual assault and sexual harassment claims invalid and unenforceable. Parties remain free, however, to mutually agree to arbitration after a claim has been asserted. The new law delegates any disputes regarding the Act, including as to the arbitrability of claims, to the courts, and not an arbitrator, to decide.

Continue Reading President Biden Signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

A bill that will prohibit mandatory arbitration of sexual assault and sexual harassment claims is on its way from the House and Senate to President Biden for his signature.  It appears likely that the President will sign the bill, given that a statement issued by the President’s Office earlier this month states that the “Administration supports” passage of the bill.

Continue Reading #MeToo Goes to the White House: Federal Legislation Awaits President Biden’s Signature

The Supreme Court’s January 24, 2022 decision in Hughes v. Northwestern University, has caused alarm in some corners, with panicked predictions of a proliferation of ERISA suits alleging that defined contribution plans provided imprudent investment options.  However, Hughes should be more properly understood as rejecting an attempt by the U.S. Court of Appeals for the Seventh Circuit to impose a novel limit on excessive fee suits.  The Supreme Court instead emphasized the application of its existing precedent in Tibble v. Edison International, 575 U.S. 523 (2015).

The Seventh Circuit had dismissed a class action complaint alleging the trustees of Northwestern Universities’ retirement plans breached their fiduciary duties by including imprudent investments among the investment options offered under the plans.  The trustees offered more than 400 various investment options, several of which the plaintiffs asserted were imprudent and many of which were not.  The Seventh Circuit held that the plaintiffs’ allegations failed as a matter of law (that is, could be dismissed without discovery or trial) because plaintiff’s preferred investment options were available under the plan (albeit alongside the allegedly imprudent options).  Therefore, the Seventh Circuit considered the trustees to be blameless for any fiduciary breaches because the plaintiffs simply could have avoided the allegedly imprudent investments and chosen the prudent ones.

Continue Reading Addressing Excessive Fee Litigation Risk in the Wake of Hughes v. Northwestern

On January 27, 2022, the California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022) __ P.3d __, 2022 WL 244731, clarified the evidentiary standard for presenting and evaluating retaliation claims under California Labor Code Section 1102.5 (“section 1102.5 whistleblower retaliation claim”).   Lawson involved a workplace retaliation claim brought by a sales representative selling paint products to home improvement stores in Southern California. The plaintiff claimed his employer terminated him because he complained about being instructed to alter the tint of certain paint colors to avoid having to repurchase less popular paints from the retailer later.

In 2003, California lawmakers enacted Labor Code Section 1102.6, setting forth a framework for whistleblower retaliation claims that varied from the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (“McDonnell Douglas”).  Despite section 1102.6’s enactment, some California courts continued to apply the McDonnell Douglas test to section 1102.5 whistleblower retaliation claims.

Continue Reading Burden Shifting: California Supreme Court Settles Confusion Over Section 1102.5 Claims

On January 26, 2022, legislation (“Amendments”) amending and significantly expanding the scope of New York’s whistleblower laws will take effect.

As our previous Insight explained in more detail, the Amendments make it much easier for individuals to bring a retaliation claim under New York Labor Law § 740 (“Section 740”) and increase coverage for workers who allege that they have been retaliated against for reporting suspected employer wrongdoing to include former employees and independent contractors.

Continue Reading New York’s Expanded Whistleblower Protections and Notice Requirements Take Effect January 26, 2022

On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

Continue Reading CDC Shortens Recommended COVID-19 Isolation and Quarantine Periods

Earlier this year, the New York State Workers’ Compensation Board adopted amendments to the regulations for the New York Paid Family Leave Benefits Law clarifying that when Paid Family Leave (PFL) is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week.

Continue Reading Cap on Intermittent New York Paid Family Leave Eliminated Effective January 1, 2022

On December 22, 2021, the New York Department of Labor (“DOL”) adopted rules (“Rules”) implementing the state’s sick leave law (NY Labor Law §196-b, or the “Sick Leave Law”), providing long-awaited clarification of the Sick Leave Law, which went into effect over a year ago on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, were proposed on December 9, 2020, and adopted without change. In addition to providing definitions of terms used in the Sick Leave Law, the Rules address three topics: (i) documentation an employer may require to verify an employee’s eligibility to use sick leave; (ii) how to count the number of employees an employer has for the purposes of determining employees’ sick leave entitlement; and (iii) how to calculate an employee’s accrual of sick leave. In addition, the DOL’s response to public comments it received after the Rule was proposed, explain how carryover of accrued unused sick leave works.

Continue Reading New York Adopts Rules Clarifying Sick Leave Law

On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”).  The CMS interim final rule, presently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation, issued a ruling on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.

Continue Reading Supreme Court Grants Rare Hearing on Stays in Vaccine Mandate Cases

Last week, the Supreme Judicial Court of Massachusetts (“SJC”) unanimously ruled that the state Personnel Records Law, M.G.L. c. 149, § 52C, provides for a public policy exception to employment at will. Writing on behalf of the full panel in Meehan v. Medical Information Technology, Inc., SJC-13117 (Dec. 17, 2021), Justice Kafker held