Employment Law This Week: Sexual Orientation Discrimination Suits, Tip Pooling, Successor Liability, Trade Secrets, Workplace Solicitation

Episode 18: Week of March 14, 2016

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Bonus Footage: An Extended Interview with Jeffrey Landes

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) EEOC Files First Sexual Orientation Discrimination Suits

Our top story this week: The Equal Employment Opportunity Commission (EEOC) filed its first sexual orientation bias suits. Last year, the EEOC interpreted Title VII of the Civil Rights Act to prohibit discrimination against an individual for sexual orientation. The agency concluded that sexual orientation discrimination is a form of unlawful gender discrimination. This month, the agency filed two landmark federal lawsuits seeking to enforce its interpretation of the statute for the first time. The agency is suing on behalf of workers at a company in Baltimore and one in Pittsburgh for harassment based on sexual orientation. Jeffrey Landes, from Epstein Becker Green, has more. For information about these landmark lawsuits, see our Retail Labor and Employment Law blog. Update: See our extended interview with Jeffrey Landes.

(2) Ninth Circuit Upholds DOL Rule Restricting "Tip Pooling"

In 2011, the Department of Labor (DOL) issued a rule that barred restaurant and hospitality employers from including kitchen staff in “tip pools,” which are sometimes used to meet an employer’s minimum wage requirements. The DOL ruled that kitchen staff should be excluded from pools even if the tips are not required to meet minimum wage obligations. Two district court decisions held that the department does not have the authority to regulate this practice outside of the minimum wage issue, but the Ninth Circuit recently reversed those decisions and upheld the department’s rule. For more information, see our Hospitality Labor and Employment Law blog.

(3) More from the Ninth Circuit: The Court Takes a Broad View of Successor Liability

Studer's Floor Covering in California had an agreement with the union that the company would contribute to the Resilient Floor Covering Pension Trust Fund for employees. When Studer's went out of business, a former staffer with the company started Michael's Floor Covering, leasing the same store and warehouse that Studer's had used. The pension fund believed Michael's was a successor to Studer’s and sued Michael's for more than $2 million in withdrawal liability. The Ninth Circuit found that an asset purchaser can be liable as a successor under the Multiemployer Pension Plan Amendments Act and remanded the case to the District Court, instructing it to look at the successorship factors again. Click here for more from our recent Act Now Advisory.

(4) Gillette Denied Injunction of Former In-House Counsel

An in-house lawyer for Gillette left the company 10 years ago. Four years later, he became General Counsel for Shavelogic, a Gillette competitor. Gillette recently tried to obtain a broad injunction against the lawyer, who they claimed would inevitably disclose trade secrets in his position. The Massachusetts Superior Court’s Business Litigation Session ruled that there was insufficient evidence that trade secrets would be revealed, and any knowledge the counsel had of patents was likely outdated or general knowledge. For more information, see our Trade Secrets & Noncompete blog.

(5) NLRB Says Dish Network’s Solicitation Policy Is Illegal

The NLRB held that a call center worker was terminated in violation of the National Labor Relations Act for soliciting co-workers to join a lawsuit alleging his employer made unlawful wage deductions. The company had a policy prohibiting solicitation in the workplace, even during non-work time, without the approval of management. However, the NLRB stated that the company could not ban solicitation during nonworking time, and could not require employees to obtain management’s approval before they could engage in concerted activities relating to terms and conditions of employment. The NLRB ruled that Dish Network must alter its solicitation policy to allow employees to engage in concerted activities in work areas outside of work hours.

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