The DOL’s persuader rule, which would have extended the longstanding persuader rules to cover attorneys providing legal advice, has been blocked by the courts. Whether it will survive numerous lawsuits, much less a Republican Congress and Trump Administration, is doubtful.
Nat’l Fed’n of Independent Bus. v. Perez , N.D. Tex., No. 16-cv-066, 11/16/16.
As predicted in earlier postings, the issue of whether sexual orientation is protected by Title VII is likely to see further examination by future courts. Now, the Seventh Circuit has split from those prior courts and held that, at least in its jurisdiction (Illinois, Indiana and Wisconsin), sexual orientation is protected by Title VII.
The split in Circuit Courts suggests a likelihood that this issue will now rise to the Supreme Court.
Colorado law already protects sexual orientation, as does the law in many states.
The case was Hively v. Ivy Tech Community College, — F.3d — (7th Cir. 4/4/17).
In a split decision, following a recent decision by the Second Circuit, the Eleventh Circuit held that sexual orientation is not protected by Title VII.
Colorado law already protects sexual orientation, as does the law in many states.
The case was Evans v. Georgia Regional Hospital, — F.3d — (11th Cir. 3/10/17).
Title VII prohibits discrimination “because of … sex,” and many court decisions have held that “sex” does not include sexual orientation. Thus, homosexuality is not protected by Title VII.
In this case, a panel of the Second Circuit repeated that holding; however, the panel then noted that, if it could consider the issue fresh, as could the Second Circuit en banc (sitting as a full bench), it believed several arguments, outlined in its decision, would warrant holding that sexual orientation should be protected by Title VII.
The decision signals a potential expansion for protection of sexual orientation at the federal level. Colorado law already protects sexual orientation, as does the law in many states.
The case was Christiansen v. Omnicon Group, Inc., — F.3d — (2nd Cir. 3/27/17).
Sometimes, companies sign collective bargaining agreements (CBA), not realizing that each promises the same work to different unions. In this case, the employer allegedly signed one CBA that promised forklift and skidster work to the Operating Engineers and another CBA that promised the same work to Laborers. This can create a jurisdictional dispute; in other words, it can lead the two unions to argue over the work.
Under section 10(k) of the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has authority to decide which union gets the work in a jurisdictional dispute.
In this 10(k) case, the Board decided that the Operating Engineers not the Laborers had the better claim to forklift and skidster work. Despite the Board’s ruling, the Laborers sued the company for benefits under its collective bargaining agreement. In effect, the Laborers argued that the Operating Engineers could have the work, but the company should have to pay benefits to both unions’ trust funds. The law that governs liability for benefits is the Employee Retirement Income Security Act. The Laborers argued that the Board’s 10(k) authority only extends to determinations of which union has the better claim to the work under the NLRA, not to which union is entitled to benefits under ERISA.
The Circuit Courts are split on the issue. The Third, Ninth, District of Columbia and now Sixth Circuits hold that the Board’s 10(k) ruling governs the ERISA claim, meaning the losing union has no claim to the work under the NLRA or for benefit payments under ERISA. The Seventh Circuit has held otherwise.
The split in Circuit Courts foretells possible Supreme Court review, especially because, here, even as it joined the majority of other Circuits, the Sixth Circuit did so over a strong dissent.
Employers with multiple CBAs should carefully review the way each of their agreements describes covered work. Overlapping descriptions should be clarified.
The case was Orrand v. Hunt Construction Group, Inc., — F.3d — (6th Cir. 2017).
Although publicly known information can be combined in proprietary ways that create a trade secret, the Colorado Court of Appeals held that a design that is not “a secret in the first place,” in other words, that is a matter “of public knowledge or of general knowledge in an industry” is not, itself, a trade secret, no matter how hard its owner works to keep it confidential, the design does not become a trade secret.
Lacking protection as a trade secret, the Court of Appeals reversed a jury’s $1.3-million verdict in this case for misappropriate in violation of Colorado’s trade secret laws.
The decision is a sharp reminder of the limitations imposed by Colorado law on companies seeking to claim trade secrets. The determination whether information constitutes a trade secret is often crucial in non-compete and non-solicit cases.
The case was Hawg Tools, LLC v. Newsco international Energy Services, Inc. — P.3d — (Colo.App. 2016).
In a decision that probably surprised no one except the often-reversed and reversed-in-this-case Ninth Circuit, the Supreme Court held that a trial court, not an appellate court, is in the best position to review the particulars of a subpoena.
Interestingly, the decision, which can be seen as reinforcing the EEOC’s ability to issue subpoenas – or at least reducing judicial scrutiny over EEOC subpoenas – was technically a loss for the EEOC. The EEOC had issued a subpoena for contact information for employees who’d taken a certain test, nationwide. The company objected, and the trial court agreed with the company, holding the EEOC’s nationwide request was overly broad. The EEOC then appealed to the Ninth Circuit, which ruled it could review the trial court’s ruling de novo (from scratch) without having to give the trial court any deference. The Supreme Court disagreed and sent the case back to the Ninth Circuit. Now, the EEOC will decide if it still wants the information, and if so, it will have the heavy burden of proving not only that it is entitled to the information but that the trial court was so wrong when it decided otherwise that it abused its discretion.
While the EEOC lost the Supreme Court case, companies should be mindful of the overarching lesson: The EEOC has broad subpoena power, and a trial court may now be the only judicial body with substantial authority to hear a challenge to an EEOC subpoena.
For an example of how EEOC subpoenas are analyzed for enforceability, see this posting.
The case was McLane Co., Inc. v. EEOC, — S.Ct. — (4/3/17/).
The Tenth Circuit refused to enforce an EEOC subpoena denied where the EEOC’s subpoena requested information regarding the employer’s treatment of other employees. The request exceeded the scope of the purely individual-oriented charge, no EEOC charge had been filed and the employer had not put its treatment of other employees at-issue in its position statement.
The case was EEOC v. TriCore Reference Laboratories, — F.3d — (10th Cir. 2/27/17).
