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Kevin Smith is a special counsel in the Labor and Employment and Litigation Practice Groups in the firm's New York office.

On January 20, 2016, the United States Supreme Court rejected a strategy recently used by some defendants to defeat class actions in their infancy. In Campbell-Ewald Co. v. Gomez, No. 14-857 (2016), a majority of the Court held that an unaccepted Rule 68[1] offer of judgment to a representative class action plaintiff does not moot the class action because the “case or controversy” still exists for a federal court to maintain jurisdiction over the lawsuit.  
Continue Reading Supreme Court Holds that Rejected Rule 68 Offer of Judgment Does Not Moot Class Action

The New York City Human Rights Law (“NYCHRL”) forbids employment discrimination on the basis of a number of protected characteristics, such as age, race, creed, color, national origin, gender (including gender identity and sexual harassment), disability, marital status, partnership status, sexual orientation, alienage, and citizenship status. The NYCHRL applies to employers with four or more employees.  On January 5, 2016, New York City Mayor Bill de Blasio signed legislation expanding the NYCHRL to add “caregiver status” as an additional protected category for which employment discrimination is prohibited.  The new law goes into effect beginning May 4, 2016, to prohibit employment discrimination against employees caring for a minor child or an individual with a disability. 
Continue Reading New York City Human Rights Law Expanded To Protect Caregivers

In late April, the National Labor Relations Board (“NLRB” or the “Board”) General Counsel’s office issued an Advice Memorandum (“Advice Memo”) (No. 177-1650-0100, available here) addressing whether a franchisor (Freshii Development, LLC) was a joint employer with one of its franchisees (Nutritionality, Inc.).  The General Counsel’s office determined that the franchisor was not a joint employer with its franchisee, using both the current Board standard for joint employer analysis and a recently-proposed, even-more-inclusive standard.  This decision has given franchisors hope that the presumption of joint employment between franchisors and franchisees that has been circulating in a number of recent court and Board decisions is finally starting to weaken.  
Continue Reading NLRB Weighs-In on Franchise Joint Employers

On April 20, 2015, the United States Court of Appeals for the Second Circuit reversed a long-standing precedent when it held in Greathouse v. JHS Security Inc., that an internal oral complaint could be sufficient to demonstrate protected activity and form the basis for a retaliation claim under the Fair Labor Standards Act (“FLSA”).  While this change altered over 20 years of precedent in the Second Circuit, it is consistent with how most other Circuits already interpret the FLSA retaliation provision.
Continue Reading What is Retaliation in the Second Circuit Under the FLSA?

On January 20, 2015, the United States District Court for the Southern District of New York issued a decision plainly reminding employers of the importance of precisely drafting employment documents.  In the case of In re Lehman Brothers Holdings Inc., 2015 WL 247403 (S.D.N.Y. Jan. 20, 2015), the Court held that a prospective employee, who had never worked a day at Lehman Brothers Inc. (“LBI”), was not entitled to a $350,000 performance bonus detailed in an offer letter which LBI rescinded.  Significantly, in reaching this conclusion, the Court relied exclusively upon its reading of the offer letter itself.
Continue Reading New York Court Finds That Plaintiff Who Never Worked a Day For Company Is Not Entitled To A $350,000 Performance Bonus

On January 14, 2015, in a case of first impression, the New York Supreme Court, Appellate Division, Second Department held that an employee can sufficiently demonstrate his membership in a protected class by virtue of his association with another person – in this case, his wife.  In Jeffrey Chiara v. Town of New Castle, 2015 Slip Op. 00326 (2d Dep’t Jan. 14, 2015), the Second Department held that Chiara could show he was discriminated against by the Town of New Castle based on religion as a result of his marriage to a Jewish person, even though he was not Jewish himself.  In so holding, the Second Department reversed the lower court’s grant of summary judgment to the Town with respect to Chiara’s claim that he was subject to religious discrimination when he was terminated.
Continue Reading Appellate Division Panel Issues Ruling Broadly Interpreting New York State Human Rights Law

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

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

On July 14th, the U.S. Court of Appeals for the Second Circuit vacated an award of summary judgment for the defendants in Abrams v. Department of Public Safety, State of Connecticut, et al., Case No. 13-111, holding that statements concerning an employee’s “fit” for a position could give rise to an inference of discrimination.
Continue Reading Second Circuit Finds Possible Pretext in Vague Justification for Non-Transfer