Supreme Court: Title VII Employee Threshold Does Not Determine Jurisdiction
The United States Supreme Court has resolved a significant issue regarding coverage under Title VII: whether the 15-employee threshold for determining whether an individual or entity is an 'employer' covered by Title VII of the Civil Rights Act of 1964 is a substantive element of plaintiff's claim for relief, or a jurisdictional issue. (Arbaugh v. Y & H Corp., No. 04-944 (2006)). In Arbaugh, the Supreme Court, reversing the U.S. Court of Appeals for the Fifth Circuit, held that the 15-employee threshold is an element of a plaintiff's claim that must be challenged prior to trial on the merits. The Supreme Court's decision is significant because evaluating the number of employees as a substantive issue would allow a federal court to exercise supplemental jurisdiction and to retain discretion to hear pendent state law claims even if it dismisses the federal claims for failure to state a claim.
New Rule on 'Internet Applicant'
The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) oversees compliance with the equal opportunity and affirmative action requirements applicable to all government contractors. The OFCCP is charged with enforcing Executive Order 11246, which prohibits federal contractors from discriminating against applicants on the basis of race, color, religion, sex, or national origin. The Order also requires contractors to use affirmative action so that equal opportunity is available for all phases of employment. As such, contractors must retain all applicant-related company records as well as other employment records. In particular, contractors are required to maintain records of 'applicant flow data' by soliciting gender, race and ethnicity information from all applicants. If a contractor fails to comply with the rules issued by the OFCCP, it will be subject to disciplinary action, ranging from citations and economic fines to debarment.
Litigation
Recent rulings of importance to you and your practice.
Life Insurance in a Divorce Setting
In many -- if not most -- matrimonial actions, counsel or the court almost always automatically ensure that the dependent spouse is provided with life insurance, despite the fact that the statute authorizing life insurance to secure alimony is permissive and not mandatory. In many cases where there is a child support obligation or an equitable distribution obligation, the purpose of life insurance is clear: to secure these obligations, in the event the paying spouse dies prior to their fulfillment. Life insurance protects the supported spouse by providing a source of funds to assist with the support of the children (an obligation that survives the death of the spouse) and by assuring that the payment of equitable distribution is received (because the payment should not depend on the life or death of the obligor).
Implied Renewal of Employment Agreements
Employers frequently enter into employment agreements with their employees for a fixed period of time at a stated annual salary. What happens if at the end of such an agreement's term both parties continue to perform under the expired employment agreement as if the agreement were still in effect? As we discuss in this article, in a majority of states, there are certain circumstances in which a court may presume the employment agreement is automatically renewed for an additional term. In such states, courts have recognized such implied renewals and have permitted employees to sue for breach of contract based upon a theory of discharge without cause during the renewal term. We also analyze how courts have addressed the enforceability of noncompetition or arbitration agreements following termination of employment after expiration of the original agreement, but during a period when an impliedly renewed agreement is in effect. Finally, we explore several considerations for drafting employment agreements to avoid unexpected results arising from the presumption of implied renewal.
How to Avoid Rule 23 'Commonality' in Class Action Employment Litigation
In many class action cases, plaintiffs seek to certify a class encompassing thousands of employees across multiple facilities and job titles. Fortunately for employers, before such a broad class can be certified, Rule 23 of the Federal Rules of Civil Procedure requires plaintiffs to establish, among other things, that there are common questions of law or fact among the proposed class members (the "commonality test"). This article assesses whether and to what extent employers can defeat class certification based upon the existence of a decentralized, subjective decision-making. After surveying the pertinent case-law in the Second, Third, Sixth, Seventh and Ninth Circuits over the past 10 years, we offer practical guidelines that employers may use to avoid the certification of broad classes.
Divorce and Sale of the Principal Residence
The division or other disposition of the marital residence has always been a major issue in most divorces. Given the tremendous increase in the value of homes in recent years, the economic and tax concerns of dealing with the marital residence are even more acute for clients and their advisers. The general rules governing income taxation on the sale of a residence were enacted as part of the Taxpayer Relief Act of 1997, Public Law 105-34, which became effective Aug. 5, 1997. Prior rules concerning home sale rollover, or exclusion of gain by certain older taxpayers, are generally no longer relevant and not discussed in this article.
After the Gulf Coast Hurricanes
In the 2005 Special Issue of <i>Employment Law Strategist</i>, we summarized key issues affecting employers following the Hurricane Katrina disaster, including the federal government's legislative and regulatory responses to the catastrophe. The following is an updated summary of relevant legislative and regulatory actions.
