Workforce Bulletin

The U.S. Court of Appeals for the Eleventh Circuit recently weighed in on the circuit-splitting debate over the proper causation standard for Family and Medical Leave Act (“FMLA”) retaliation claims. In a win for employers, the Eleventh Circuit held that the proper standard is the heightened “but-for” causation standard, rather than the “motivating factor” causation standard, leading it to affirm the district court’s grant of summary judgment in favor of defendant Walgreen Co. (“Walgreens”) against plaintiff Doris Lapham (“Lapham”) on her FMLA ...

The U.S. Court of Appeals for the Second Circuit issued a decision in Slattery v. Hochul, reversing the dismissal of a First Amendment challenge to New York Labor Law §203-e (also referred to as the “Boss Bill”). The Boss Bill prohibits employers from taking adverse employment actions against employees based upon their reproductive health decisions, including “a decision to use or access a particular drug, device or medical service,” and also forbids employers from “accessing an employee’s personal information regarding the employee’s . . . reproductive health decision making.” The term “reproductive health decision making” necessarily would include an employee’s decision to have an abortion or use contraception. The Boss Bill, unlike Title VII of the Civil Rights Act, does not contain an exemption for religiously affiliated organizations.

For more than 70 years, the Supreme Court has construed exemptions to the Fair Labor Standards Act (“FLSA”) narrowly. In A.H. Phillips, Inc. v. Walling, for example, the Court stated that “[t]o extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people.”  324 U.S. 490, 493 (1945).  The Supreme Court has restated this rule many times in the intervening years, and the lower courts have followed, citing this principle in virtually every significant case ...

A Maine dairy company has received a potentially expensive grammar lesson from the U.S. Court of Appeals for the First Circuit, which held on March 13, 2017, that the company’s delivery drivers may be eligible for up to $10 million in overtime pay, because the lack of a comma in the statute regarding exemptions from the state’s wage and hour law rendered the scope of the exemption ambiguous.

Grammarians have long disputed whether writers should include a comma before the final item in a list—the so-called “serial” or “Oxford” comma.  Opponents of the serial comma consider ...

Over the past week the U.S. Court of Appeals for the District of Columbia Circuit weighed in on two separate related efforts by the Obama-Board to expand the protections of the National Labor Relations Act (the “Act”) to workers who are not in traditional employer-employee relationships.

One Court – Two Cases

In a March 3, 2017 decision, the Court rejected the National Labor Relations Board’s (“NLRB”) finding that FedEx Home Delivery drivers were employees and agreed with the company that the drivers were independent contractors and therefore did not have the right to ...