Q: May employers require that employees enter into agreements as a condition of employment, mandating them to arbitrate employment-related claims?

A: Not without risk. California Assembly Bill (AB) 51 bans mandatory arbitration agreements as a condition of employment, but before the statute went into effect, a California federal district court entered an injunction effectively blocking enforcement of AB 51. On September 15, a Ninth Circuit panel reversed the district court’s injunction. The Ninth Circuit panel’s decision does not take effect immediately, however, and it is very likely that the panel’s decision will be challenged and that further legal filings will result in the district court’s injunction remaining in effect for some period of time. In the meantime, California employers that continue to use mandatory arbitration agreements face risk and uncertainty. Continue Reading Ninth Circuit Restores California’s Ban on Mandatory Employment Arbitration Agreements

Q: Do work-from-home arrangements create a heightened risk that company trade secrets may be exposed?

A: Without proper precautions, in many ways, “yes.”

Since the onset of the pandemic, we have observed an increased use of external storage devices by employees to save and access work-related documents. We have heard several reasons for this, but the primary one is that employees often complain that accessing large data files remotely takes considerably more time than when they access files via the network in the company’s physical offices. Thus, employees have resorted more often to using personally owned external storage devices, such as external hard drives and thumb drives to download and access company materials.

Continue Reading Protecting Trade Secrets in a Work-From-Home World

Q. Have any court rulings upheld the denial of requests for exemption from the COVID-19 vaccine?

A. Yes. Coming on the heels of President Joe Biden’s plan to require millions of workers to receive COVID-19 vaccinations, many employers either have already implemented or have begun implementing vaccine mandates. As expected, these mandates have triggered some employee pushback, particularly from those requesting an exemption from the vaccine requirement based on a disability or religious belief. While there have not been many published decisions on this issue yet, one recent decision from the Pennsylvania Court of Common Pleas provides guidance to employers in determining whether a request for exemption from a vaccine mandate based on a religious belief must be accommodated.

Continue Reading Pennsylvania State Court Rules That Private Employer May Deny Exemption Request From COVID-19 Vaccination

Q: Are California courts concerned about the manageability of actions under the Private Attorneys General Act (PAGA)?

A: Yes, on September 9, the California Court of Appeal agreed that a PAGA action was unmanageable, and it affirmed an order granting the employer’s motion to strike and dismiss the PAGA claim. In Wesson v. Staples the Office Superstore, LLC, the court held that trial courts have the inherent authority to ensure PAGA claims will be tried fairly and efficiently. The court ruled that this authority includes the ability to strike a PAGA claim “that cannot be rendered manageable.” Continue Reading California Court of Appeal Affirms Order Striking Unmanageable PAGA Claim

Q: What do employers need to know about the Biden administration’s new vaccine mandate?

A: Following the Biden administration’s September 9 announcement, employers are brimming with questions about the forthcoming White House COVID-19 vaccination mandate plan. Must all employers mandate the vaccine? Which employees are covered? When will the requirements take effect? What steps should employers take now to prepare? These and many other questions are yet to have complete answers. With the new rules expected to impact as many as 100 million workers (and with them, a significant number of businesses), employers should begin to prepare as soon as possible. Here’s what we know and what employers need to consider.

Continue Reading Biden Administration Announces Vaccination Mandate Rules

Q: Does the ADA apply to internet-only businesses?

A: The U.S. District Court for the Eastern District of New York recently ruled that the Americans With Disabilities Act (ADA) does not apply to websites that maintain no connection to a brick-and-mortar retail location based on a strict construction of the statutory language. Currently, the circuits are split as to the standard to be met for the ADA to apply to a website, and it remains to be seen whether the Second Circuit or other federal district courts will adopt the same rationale to afford a safe harbor for web-only retailers. Continue Reading NY District Court Rules ADA Does Not Apply to Internet-Only Businesses

Q: What new employment laws impact Oregon employers?

A. The employment law landscape is shifting in Oregon, with this year’s legislative session bringing several noteworthy changes to the state’s employment laws. In this blog post, we explore some of the more significant changes passed in 2021 and forecast what may come our way in the months ahead.

Continue Reading Oregon Employment Law Update

* Faith Simms is a 2021 summer associate at Troutman Pepper. She is not admitted to practice law.

Q: Can an employer be found liable for terminating an employee for misconduct after an investigation initiated by a biased supervisor?

A: In a recent decision issued by the Seventh Circuit, Vesey v. Envoy Air, Inc., the court held that the employer was not liable under the cat’s paw theory even though the investigation leading to the employee’s termination was initiated by a biased manager. The cat’s paw theory of liability applies to circumstances where a biased individual, who lacks decision-making power, influences the decision-maker into taking adverse employment action against the employee.

Continue Reading Seventh Circuit Dismisses Retaliation Claim Brought Under Cat’s Paw Theory of Liability

Q: I understand the NY DOL recently released model plans for the NY HERO Act. What do employers need to do to comply?

A: The New York Health and Essential Rights Act (NY HERO Act or Act) requires employers to implement workplace health and safety measures to protect employees during a future airborne infectious disease outbreak. The Act applies to all private employers and to all worksites.

Continue Reading New York DOL Releases Model Plans Under HERO Act

Q. My company wants to improve our hiring process to help avoid costly errors that may lead to potential discrimination claims. What best hiring practices do you recommend?

A. Hiring new employees — whether high school and college students looking for part-time work or recent graduates entering the workforce — can be challenging. One possible risk is that a job applicant could claim unlawful discrimination based on your decision not to hire that applicant, even if the claim is not valid. We offer the following helpful tips to consider as you conduct the hiring process:

Continue Reading Hiring Best Practices to Avoid Potential Discrimination Claims