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Sotomayor’s employment decisions under scrutiny

May 28th, 2009  |  Lucas Otto  |  Add a Comment

The recent nomination by President Obama of Sonia Sotomayor as his pick for US Supreme Court Justice has sparked debate on whether her judicial “tendencies” fall more to the left, right, or somewhere near the center. From an employment law perspective, her opinions have often sided with the plaintiffs, and this may have some employers concerned that her vote may tip the scales against them.

Sotomayor’s opinions have dealt with race, sex, age and disability discrimination. In particular, look to her reasonings in:

A comprehensive review of these and other decisions has been prepared by Akin Gump’s Tom Goldstein and a group of summer associates. The resulting summary of civil cases, including several noteworthy rulings, are posted on ScotusBlog.

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Pyett line of cases promises wide umbrella

May 27th, 2009  |  Matt Pavich  |  Add a Comment

>On April 1, 2009, the US Supreme Court issued its decision in 14 Penn Plaza LLC v Pyett, holding that unions, through arbitration provisions in collective bargaining agreements, may waive the rights of individual employees to litigate discrimination claims. A little over one month later, the first cases comprising the future Pyett line were released. From these two decisions, it seems likely that lower courts hearing mandatory arbitration cases will cite the Supreme’s decision in Pyett in support of their holdings, regardless of whether the facts suit the rather unique circumstances underlying the Pyett decision.

In Mathews v Denver Newspaper Agency LLP, the District Court for the District of Colorado found that an employee’s right to litigate his retaliation and discrimination claims was waived and cited Pyett for the proposition that discrimination claims are waivable through grievance arbitration. Unlike Pyett, the plaintiff had the opportunity to litigate his claims, but instead opted for binding arbitration, as his CBA allowed. In essence, the plaintiff himself waived his right to litigate his claims. The waiver did not stem from the CBA, as in Pyett, but rather from the plaintiff’s own choice.

The District Court for the Southern District of New York has also weighed in. In Kravar v Triangle Services, Inc, the court cited Pyett for the proposition that CBAs which effectively preclude plaintiffs from raising discrimination claims in any forum cannot be upheld. The Supreme Court’s decision in Pyett expressly declined to consider whether the CBA in that case acted as a substantive waiver of the plaintiff’s ADEA rights; although the provision allowed the union to block arbitration, the plaintiffs failed to brief the issue. The Southern District faced exactly that question. The CBA in question stated that all discrimination claims would be settled through arbitration, but only if the union requested it. The union decided not to arbitrate, and in so doing, blocked the plaintiff’s substantive rights. If anything, this case suggests that the questions raised by Pyett will continue to fuel debate, until the Supreme Court rules on this final point.

The Court may not get the chance, however. The Senate version of the Arbitration Fairness Act includes a provision that would expressly overturn the US Supreme Court’s ruling in Pyett. Russ Feingold, the measure’s author, has said that the proposed bill would “make it clear that such agreements may not waive employees’ rights to take federal and state statutory or constitutional claims to court.”

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Hobby Lobby bucks economic trend

May 15th, 2009  |  David Stephanides  |  Add a Comment

>Hobby Lobby, a retail chain of more than 400 arts and crafts stores, has increased the wages of full-time hourly employees to a minimum of $10 per hour, more than 52 percent above the national minimum wage of $6.55 per hour. This increase and other pay raises for full-time hourly employees earning up to $13 per hour will raise the pay of more than 6,900 employees, some by up to nearly $600 per month. “Our employees are the backbone of our company, and we believe that giving them the opportunity to share in our success is the right thing to do,” said David Green, CEO and founder. It’s not the first time Hobby Lobby has bucked the trend in trying times: last year the company gave raises to offset cost of living increases when gas prices rose.

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RIF by bumper sticker

May 14th, 2009  |  David Stephanides  |  Add a Comment

>Workplace Prof blogger Jeffrey M. Hirsch has a new hypo for his employment law course, he notes, in the form of a company president who claims to have selected workers for layoff by walking through the company parking lot and finding employee cars whose bumpers have Obama stickers on them. “I can’t think of a more fair way to approach this problem,” the boss writes. “They voted for change, I gave it to them.”

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When a staffer switches genders

May 14th, 2009  |  David Stephanides  |  Add a Comment

>While most employers will likely never have to deal with a transgender worker, gender identity has become the latest battleground issue in employment discrimination law, which no employer can ignore, reports CNNMoney.com. Quoted in the article, Ramapo College law professor Jillian Weiss, who discusses these issues in her Transgender Workplace Diversity Blog, stresses workplace civility. It is not about trying to convince your workforce to endorse a transgender lifestyle, she said, but employers must create a work environment that is tolerant and respectful of all employees.

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