The EEOC’s Assault on Separation Agreements – A Bump in the Road, But It’s Far From Over

Most employers have separation agreement forms that have served them well over the years.  The terms have become fairly standardized and, aside from the occasional tweak, they don’t change much and are rarely challenged.  Enter the EEOC, upsetting the apple cart with its new strategic enforcement initiative.  In recent litigation, it has staked out an aggressive (and new) position challenging what appear to be fairly standard separation agreement provisions.  Although it suffered a minor setback earlier this month, we shouldn’t expect it to back off from its new-found position.

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Employer Permitted to Use “After-Acquired” Evidence at Discrimination Trial

In Weber v. Fujifilm Medical Systems USA Inc., et al., case numbers 13-4891 and 14-0206, decided on October 9, 2014, the U.S. Court of Appeals for the Second Circuit held that a former executive’s employer could use “after-acquired” evidence – evidence of an employee’s misconduct during the period of employment which the employer discovers after the employee’s discharge on other grounds – to confirm the nondiscriminatory reason for his termination.

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Paid Sick Leave Spreads Throughout New Jersey

While the New Jersey Senate and Assembly continue to debate state-wide sick leave laws, four more New Jersey municipalities have enacted mandatory sick leave laws for private employers.  Effective January 2015, East Orange, Paterson, Irvington and Passaic will join Newark and Jersey City in requiring paid sick time for employees.

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California Enacts New Law Mandating Paid Sick Leave for Employees

On September 10, 2014, California Governor Jerry Brown signed into law the Healthy Workplaces, Healthy Families Act of 2014.  As a result, most employers in California will be required to provide up to 24 hours (3 days) of paid sick leave to their employees beginning July 1, 2015.  The following are some of the key requirements of the Act.

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Reminder: New York Interns Are Now Protected Under Both the State and City Human Rights Laws

Following New York City Mayor Bill De Blasio’s endorsement of an amendment to the New York City Human Rights Law (“NYCHRL”) extending the statute’s anti-discrimination and harassment protections to interns earlier this year (as reported here), New York Governor Andrew Cuomo recently signed into law similar legislation modifying the New York State Human Rights Law (“NYSHRL”).

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UPDATE: New Jersey Limits Use of Criminal History in Hiring Decisions

As we reported in December 2013 (see here), New Jersey was on the road to joining 6 other states which have recently passed legislation banning or limiting the use of criminal background checks in the hiring process.  On August 11, 2014, New Jersey Governor Chris Christie signed the Opportunity to Compete Act, and New Jersey joined Connecticut, Illinois, Massachusetts, and Rhode Island, among a number of other states, cities, and municipalities, in prohibiting employers from asking about an applicant’s criminal history during the initial stage of the application process.  The New Jersey legislature had passed the measure in June.

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Southern District Magistrate Judge Clarifies FLSA “Computer Professional” Exemption

In an April 2014 decision in the Southern District of New York, Olorode v. Streamingedge, Inc., No. 11 Civ. 6934 (GBD) (AJP) (S.D.N.Y. Apr. 29, 2014), employers were given some clarification on the Computer Professional overtime exemption available under the Fair Labor Standards Act (“FLSA”).  As courts in the Second Circuit have not often had occasion to expound on the Computer Professional exemption, this decision will be helpful going forward in understanding which computer- or technology-based employee positions likely will qualify for this exemption and which likely will not.

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Second Circuit Finds that Entry-Level Audit Associates at Accounting Firm are Exempt from Federal Overtime Requirements

In Pippins v. KPMG LLP, No. 13-889 (2d Cir. July 22, 2014), the Second Circuit Court of Appeals unanimously held that entry-level audit associates (“Plaintiffs”) at KPMG LLP qualify for the Fair Labor Standards Act’s (“FLSA”) “learned professionals” overtime exemption.  The Second Circuit explained that, while the closely-supervised employees were “the most junior members” of the KPMG accountancy team and did not “make high-level decisions,” their work still required sufficient knowledge and judgment to qualify for the exemption.

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California Court of Appeal Enforces Contractor’s Agreement to Arbitrate Misclassification Claims Out of State

On Monday, July 21, 2014, the California Court of Appeal issued its opinion in Galen v. Redfin Corp., A138642.  This case is important for two reasons:  (1) the court upheld an arbitration agreement between a Seattle-based company and a California plaintiff challenging his status (and that of the putative class) as an independent contractor (v. employee), even though the agreement provided for the application of Washington law and a Washington venue; and (2) it reinforces California’s strong policy of enforcing forum-selection clauses, a policy that is relevant outside the context of arbitration, such as in the noncompete context.

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