Many ‘religious objection to vaccine mandate’ cases in 2020 and 2021 sought equitable relief – many were filed in a rush to prevent employees from being terminated. Today, cases such as those by Williams and Faber, are cases for damages. They are, then, tried and true Title VII cases. As Title VII cases, there is little room for discussions of public safety or whether it is right or wrong to be vaccinated. Title VII cases boil down to i) whether the employee had a sincerely held belief or a medical issue that prohibited vaccination, and ii) whether the company could have, but did not, reasonably accommodated or provide an exception for that employee. 

For the most part, in a Title VII case, the validity of a sincerely held belief can only be tested by a jury.  An employer generally cannot and should not question the truthfulness of an employee who seeks a certain day off or breaks to participate in religious or spiritual activities.  Stated differently, employers take a significant risk in assuming that a certain sincerely held belief is not legitimate; only a judge or jury may make that determination definitively.  The employer must essentially prove that, at the time the exception or accommodation was denied, the employer knew, and could prove, that the employee was lying or fabricating their need for an accommodation or exception; this is a high bar for the employer.

Contrast this to a disability case, where a doctor may very well say “they are healthy, they do not need an accommodation.” There, an employer may very well say “you do not need an accommodation, we will not give you one” and be justified and not subject to liability under the Americans with Disabilities Act. In the religious context, saying “we do not believe your religious objections are legitimate” is not nearly as cut and dry.  Therefore, “sincerity is generally presumed or easily established.” Moussazadeh v. Texas Dept. of Criminal Justice, 703 F.3d 781, 791 (5th Circ. 2012).

Disney, ESPN, and its affiliates will likely have a very difficult time overcoming this presumption. Assuming the belief is sincere, the employer then has to prove that accommodating the religious belief would have been an ‘undue hardship.’ An undue hardship is a fact intensive analysis, but, for Williams and Faber, the hurdle seems not insurmountable.  In fact, it seems quite easy to show that the employers would not have endured a hardship.  Williams and Faber could have been accommodated by i) allowing them to continue to work remotely, ii) if they had covid recently, recognizing the effect of natural immunity, iii) allowing them to come to work with masks, iv) weekly testing, and a number of other possibilities.  Most major hospitals and universities applied this analysis and allowed for appropriate accommodations.  Based purely on income, it seems unimaginable that it would be an ‘undue hardship’ for Disney or ESPN to accommodate either Williams or Faber.  Denying their religious accommodation was religious discrimination, and ‘mandating vaccination for the public good’ is not a cognizable defense under Title VII.

Our office currently has a Title VII vaccine case before the Northern District of Texas, 3:22-cv-01673-N Cloud et al v. Cumulus Media New Holdings Inc.  If you feel that your employer has discriminated against you, contact our employment attorneys today.

One social change has been gaining traction since 2010, when Chastity C. Jones was denied a job at a call center because of her hair style and eventually lost her Title VII case. In Jones’ case, EEOC v. Catastrophe Management Solutions, her dreadlocks were inexplicably tied to her race, and formed the basis of the discriminatory animus against her. The Court did not find race to cover natural hair, and, so, dismissed her case. This case, and its dismissal, led to a number of legislative bodies enacting ‘CROWN Acts’, explained below, to remedy discrimination against some traits clearly tied to race but not yet recognized, by Courts, as ‘race.’

That social change has led to political activism, and, now, growing political change. The CROWN Act was recently passed by the United States House of Representatives, and is slated to return to the United States Senate. The CROWN Act failed to gain enough votes in the Republican controlled Senate in 2020, but with current Senate split, and despite Vice President Harris’ high likelihood of breaking the tie in favor of supporting the CROWN Act, it is possible, but unclear, that it will be passed into law. President Biden has already shown support for the bill and would likely vote it into law should it survive the Senate.

The Senate lull, however, has not prevented State legislators from moving on similar laws. Most recently, the Massachusetts Senate voted to approve its own version of a CROWN Act. This is not a novel State action, as California created its own CROWN Act in 2019 and about a dozen other States, including New York and New Jersey, followed suit shortly after.

The CROWN Act would be a leap forward for those who experience discrimination because of their natural hair style. Despite the growing subtleties of discrimination, the predominant federal discrimination law, Title VII, has been slow to react to more ‘hidden’ racism. Many federal circuits have stuck to a very textbook definition of what constitutes ‘race,’ imbuing that definition without regard for the complexities of day-to-day life. For example, many circuits have found that race is tied to those characteristics which a person ‘cannot change’ about themselves. Naturally, this creates a complex web of what it would mean to ‘change,’ such as whether the availability of rhinoplasty would eliminate one’s nose as tied to their race, but Courts have found that someone’s natural hair is something they can change and, thus, not ‘race’ for purposes of Title VII.

This may be subject to change, however, as a hair discrimination case is currently in New York federal court, Gurley v. David H. Berg & Associates, and the court seems poised to accept arguments that one’s natural hair may be bound into race for purposes of discrimination under Title VII. The Court dismissed hostile work environment claims but retained the discrimination claims which were formed, in part, by the Plaintiff’s subjugation to hair discrimination, notably, that she was told her afro was “unpolished.” Whether these arguments will remarkably impact this case, and whether the broader arguments about hair discrimination will influence the United States Senate, remains to be seen.

Regardless, if you feel that you have been discriminated against, call one of our attorneys today! .

Several New York City municipal worker’s unions are suing to stop New York City from terminating unvaccinated employees slated to lose their jobs. The suit is brought by more than two dozen unions, including the United Federation of Teachers (UFT), Uniformed Fire Officers Association and the Police Benevolent Association. The plaintiffs argue that the city’s plan to terminate employees who did not get their COVID-19 vaccination and failed to receive medical/religious exemptions violates their due process rights. The unions argue that accommodations, such as weekly coronavirus testing and remote work, are more appropriate than termination due to vaccination status.

Prior to the lawsuit, thousands of unvaccinated public school staff had their religious and medical exemption bids denied by the New York City Department of Education. Shortly after, those employees received their final notices of termination. The UFT claimed that approximately 700 members received termination notices. These unvaccinated members remained on unpaid leave after refusing previous offers for severance. The lawsuit claims these employees are entitled to a hearing prior to termination. The UFT is encouraging its unvaccinated members to demand a hearing know as a “3020a.” The UFT argues that under this provision, tenured educators are entitled to a hearing with an arbitrator before getting fired. However, it remains unclear if these hearings can prevent unvaccinated educators from losing their jobs. The Department of Education responded by claiming that the 700 educators who received termination notices were not being disciplined but rather, they were simply no longer eligible to work for New York City. In a recent statement to the New York Post, Kimberly Joyce, spokesperson for the New York City Law Department said, “This argument has been already raised in nine different lawsuits and rejected…Courts have clearly and consistently found compliance with the Health Commissioner’s order to vaccinate is a condition of employment, not discipline, and employees who choose to remain unvaccinated do not get a disciplinary hearing prior to termination.” Permanent medical exceptions to New York City’s vaccination mandate are only considered “where the individual has a documented allergic reaction such that the member cannot receive any of the three authorized COVID-19 vaccines,” according to the UFT.

Recently, as of March 24, 2022, NYC Mayor Eric Adams stated that professional athletes would be allowed to compete despite vaccination status. While this may be a victory for athletes like Aaron Rogers, and, more specifically to New York’s Brooklyn Nets, basketball superstar Kyrie Irving, the move as been seen as a slap in the face to average, unvaccinated New York employees. Because they lack the ‘superstar’ status of professional athletes, they continue to be prevented from working in their pre-vaccine mandate roles, showing clear favoritism for those with more ‘elite’ employment.

If you believe you have been discriminated against or subject to a vaccination mandate at your place of work, contact one of our employment attorneys today.

On January 26, 2022, amendments to New York’s whistleblower protection law went into effect. These amendments, codified at section 740 of the New York Labor Law, include updates requiring the implementation and enhancement of employee support structures, robust reporting mechanisms, and access to regular training for employees, employers, and managers through human resources. Although these amendments will have varying effects depending on the employer’s industry and size, many employers will have to take a hard look at their internal reporting mechanisms, which may require several updates under the amended law.

The crux of the amendment, as relevant to employees, is the mental standards necessary to be protected as a whistleblower. Previously, employees needed to know the law being violated by an employer when complaining, such as stating “this issue violates NY Labor Law 100.” Now, however, employees can simply state “I reasonably believe that the black mold in the breakroom is dangerous to our health” and that will qualify for creating a protected status if the employee is retaliated against for that statement. This change is designed to enhance protections for private-sector employees who allege retaliation for reporting what the employee reasonably believes to be violations of “law, rule, or regulation.” This provision was included to expand and protect worker’s ability to speak out against unsafe and illegal workplace practices.

The definition of “employee” was also amended here to include former employees and independent contractors. Additionally, the definition of “law, rule or regulation” was amended to envelope executive orders, judicial rulings, and administrative decisions. Further, the definition of “retaliatory action” was expanded to include actions taken by an employer that contacts or threatens to contact immigration authorities in response to an employee’s allegation of retaliation. The protection regarding immigration status was expanded to employee’s household members as well.

The amendments now require employers “inform employees of their protections, rights and obligations” under the new law by posting a notice “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.” To comply with these laws, many employers have begun to issue periodic reminders about the existence of such policies and implement regular training about these policies, to essentially cover their bases. Employers may also be incentivized, but not necessarily required, to inform applicants about these internal policies at the earliest possible interaction during the interview process.

Under New York Labor Law, an employee must first give notice to “a supervisor” to qualify for statutory protection. This broad provision creates an incentive for employers to develop a robust and streamlined reporting process to comply with the law and take swift defensive action in response to any complaints. Employers are also incentivized to make sure all their supervisors, managers, and human resources personnel are up to date with training regarding these amendments to the whistleblower law.
Although many New York businesses already have robust and streamlined reporting mechanisms, the amended definition of key terms and provisions under New York Labor Law are broad enough to warrant a hard look at the way business owners and managers internally handle retaliation and whistleblower complaints.

If your employer has violated the updated New York State whistleblower amendments or you have been retaliated against for reporting a violation in the workplace, contact one of our employment attorneys today.

On Friday, February 25th, 2022, President Biden announced his nomination of Judge Ketanji Brown Jackson to the Supreme Court of the United States. If confirmed, she will be the first Black woman to sit on the country’s highest court. The President’s decision fulfilled his campaign promise to nominate a Black woman to the Supreme Court. Judge Jackson appeared on the President’s short list of nominees and now that the nomination is official, Judge Jackson will begin to meet with Democratic and Republican leaders on Capitol Hill. Because Supreme Court confirmation hearings have become uniquely polarized and politicized in recent memory, Judge Jackson will likely face a contentious confirmation battle, and will endure attacks on her judicial record. The President and Senate Democrats hope to have a final floor vote by April 8th, 2022. This date, however, is tentative and subject to change as the Senate, and country at large, shifts focus to Russia’s invasion of Ukraine. After accepting President Biden’s nomination at the White House, Judge Jackson paid homage to Judge Constance Baker Motley, first Black woman to serve as a federal judge in the United States. Coincidently, Judge Jackson shares a birthday with Judge Constance Baker Motley.

It is unclear whether Judge Jackson will face widespread opposition in her Senate confirmation hearings but it is worth keeping an eye on Republican Senators Lisa Murkowski, Susan Collins, and Lindsey Graham, all who voted to confirm Judge Jackson to the Court of Appeals in 2021. The Democrats can confirm Judge Jackson without any Republican support, with Vice President Kamala Harris serving as the tie-breaking vote.

Judge Jackson has handled many labor and employment related matters. The workplace law cases Judge Jackson decided were mostly single-plaintiff matters which do not provide much insight to how she will rule on future matters. It has become standard practice for Supreme Court nominees to carefully avoid answering any policy or political related questions in their confirmation hearings.

However, Judge Jackson has handled several cases involving workplace discrimination in the D.C. District Court. Judge Jackson has authored moderate decisions, sometimes siding with defendant employers. In Johnson v. Perez, Judge Jackson granted summary judgment to an employer, noting that the plaintiff’s alleged evidence of pretext was not sufficient. Further, Judge Jackson has handled several retaliation claims and applied strict scrutiny in cases like Manus v. Hayden and Alma v. Bowser.

Judge Jackson’s historic nomination to the Supreme Court is a highlight of President Biden’s first term. Although Judge Jackson’s nomination is the first of its kind, her confirmation will not alter the 6-3 majority on the Court.

After a long and tumultuous period in our city’s history, New York City is taking a big step towards normalcy. Governor Kathy Hochul announced masks will no longer be required in schools as of March 2, 2022, after previously ending New York’s statewide mask mandate for most indoor settings. Changes to state mask policies follow the Federal Center for Disease Control and Prevention’s announcement to relax masking guidelines and that most counties in the United States no longer meet the threshold within which public face coverings are recommended. The relaxation of masking requirements at the federal and state levels reflect a significant decrease in coronavirus cases nationwide.

Mayor Eric Adams recently announced that New York City school students do not have to wear masks while taking part in outdoor activities. Mayor Adams also said that mask requirements will be completely rescinded on Monday, March 7th. While mask mandates in most indoor settings, including stores, offices, building common areas, and theaters were lifted in February, individual businesses can still require patrons to wear face coverings while indoors.

However, there are still some places New Yorkers will be required to wear masks. Masks and face coverings are still required on public transportation, taxis, nursing homes, correctional facilities, and homeless shelters. Face coverings and masks are still required in health care spaces, including hospitals and doctor’s offices. Federal rules still require masks to be worn at airports, train stations and other transportation hubs until March 18th, the earliest.

The relaxation of vaccine mandates for indoor spaces does not apply to municipal workers throughout the five boroughs. Aside from the relaxation of some indoor vaccine mandates, Mayor Adams made clear that, “All other vaccine mandates in New York City will remain in place at this time as they are, and have been, vital to protecting New Yorkers.” Municipal groups, including NYC teachers, fire and police department unions, are engaged in an ongoing lawsuit against the city for terminating members who refused to comply with vaccination requirements.

If you have been discriminated against or subject to a vaccination mandate at your place of work, contact one of our employment attorneys today.

Starting on January 2, 2023, New York City will require employers and employment agencies to complete a bias audit before implementing automated employment decision tools to screen job candidates or evaluate employees for internal promotions. Any hiring tool that involves a computational process derived from machine learning, statistical monitoring, data analytics or artificial intelligence, will be considered “an automated employment decision tool” under New York City law. Additionally, any employment tool that issues a score, classification or recommendation to substantially assist or replace discretionary decision-making in hiring or promotion decisions, will also be considered “an automated employment decision tool.” The tools that employers use to hire new recruits are becoming increasingly reliant on artificial intelligence and digital software. Many large companies receive thousands of applications per position and use computer software programs to filter and select candidates with desirable résumés, job skills, and experience. This law also requires employers to complete a bias audit when considering promotions for current employees. Companies will have to audit the software and procedures they utilize to assess employee productivity and performance assessment as well.

There are specific notice obligations that New York City Employers must comply with when reviewing job candidates and employees for promotions. At least 10 business days before the respective automated hiring tool is used, candidates or employees must be notified the following: 1) An automated decision tool is being used as part of the evaluation and the candidate or employee has the right to request an alternative section process or accommodation; 2) The tool will reference a specified list of job qualifications and characteristics in assessing the candidate or employee; and 3) Within 30 days of a candidate’s or employee’s written request, an employer must provide information about the types of data collected for the automated hiring tool, the source of the data and the internal data retention policy. Companies and hiring agencies can alternatively comply with this provision by posting the required information on their website. Further, employers must arrange for an independent bias audit of any automated employment decision tool no more than one year prior to the use of the tool to assess the disparate impact on account of race, ethnicity, or sex. Employers are required to post a summary of the most recent audit on their website prior to implementation. Employers will be fined if they are found to be in violation of the new law and will be fined separately for each day the tool is used illegally.

The problems surrounding bias in automated employment processes are concerning because automated systems and algorithms can close doors for applicants and employees before their résumé and expertise are ever reviewed by a real person. Software programs and automated systems filter out many candidates and narrow down the applicant pool before hiring committees take a hard look. The new law is just one of many laws designed to combat bias in the workplace. Bias in the hiring process hinders equality and opportunity for employees across racial, gender and ethnic boundaries. Similar laws have already been passed in states like Illinois and Maryland.

The influx of software that incorporates artificial intelligence and/or facial recognition technology into the hiring process presents new challenges. Proponents of similar laws argue that the use of automated hiring tools will have a disproportionate impact on minority applicants. In October 2021, The US Equal Employment Opportunity Commission launched a commission to gather additional information about the implementation and unintended consequences of automated employment-related technologies and algorithmic fairness.

If you believe your employer violated the above requirements under New York City law through the use of automated hiring tools or you experienced bias in the workplace, contact one of our employment attorneys today.

In early February 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445). The new federal law restricts arbitration agreements for sexual assault and sexual harassment claims. The law amends the Federal Arbitration Act (FAA) to allow employees who are parties to arbitration agreements with their employers to decide whether to bring their claims of workplace sexual assault or sexual harassment in court or arbitration. In other words, the law will make it easier for victims of sexual assault and harassment to bring cases forward in court without being forced to arbitrate these claims. President Biden is expected to sign the bill into law, which has received widespread bipartisan support. The law passed in the House by a substantial margin of 335 yes to 97 no, and the Senate by voice vote.

This new law will promote the interests of plaintiffs who have experienced sexual assault and/or sexual harassment in the workplace. Prospective plaintiffs, as opposed to defendants, now have the option to decide whether to litigate their claims in public court or through the private arbitration process. Plaintiffs who bring these cases can no longer be forced into arbitration. This new law also protects employees who previously signed agreements limiting their legal remedies to arbitration only. Employees who experienced sexual assault and/or sexual harassment and previously signed arbitration agreements will have the option to decide between court and arbitration as well. Further, individual employees can decide to bring their case individually or as a class action, regardless of whether they previously signed an agreement waiving their rights to do so. It is worth noting that this law will apply retroactively; existing arbitration clauses or contracts involving sexual assault and/or sexual harassment in the workplace are now voidable.

The applicability of this new law is to be decided upon by federal judges under federal law, rather than individual arbitrators. H.R. 4445 applies in an employment context but also applies to clients, patients, customers, and other consumer service users that were previously required to sign arbitration agreements. Leasing contracts, ride-sharing apps, and home improvement contracts are subject to the provisions of H.R. 4445 as well.

H.R. 4445 will give a voice to victims of sexual assault and/or sexual harassment. It will also grant them the opportunity to pursue claims on their own terms. Additionally, the law will hold companies and business owners accountable for the actions of their employees. The law incentives companies to make greater strides to address sexual assault and/or harassment claims. In the past, companies have been able to use arbitration agreements to silence and intimidate victims from going public with their claims. With the passing of H.R. 4445, companies are more aware that any claims of sexual assault and/or sexual harassment can result in a public and expensive lawsuit. This new law promotes accountability, transparency, and the overall personal agency of victims.

If you are a victim of sexual assault and/or sexual harassment at work or have been subject to an arbitration agreement regarding such claims, contact one of our employment attorneys today.

American professional sports have an interesting history in Court and in Congress.  Major League Baseball, for example, is exempt from anti-trust law because the Supreme Court Justices who decided Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs really enjoyed the sport and did not want to upset fans by putting limits on America’s national past time.  This seems silly, but many would agree that on the law the Court there was wrong, and came down with its decision to keep the fans happy, but that did not stop Congress from codifying the anti-trust exemption.  Today, however, a different league, the National Football League, is being brought into Court by Brian Flores, ex-head coach of the Miami Dolphins, following his allegations of disparate treatment in hiring Black head coaches.

Typically, it is quite hard to get professional sports leagues into Court because of collective bargaining agreements (“CBA”), which set terms and agreements and have provisions stating that disputes of those terms and agreements must be arbitrated, meaning they will be decided by a private panel, and not allowed in Court.  The case by Brian Flores, a class action, in fact, is not subject to the CBA despite being tied to the conditions and terms of employment set out in the CBA because employees cannot contract to waive their right to be free of discrimination.  Because it is not covered by the CBA, the NFL is subject to federal jurisdiction and has chosen the Southern District of New York as the forum.

Flores’ extensive complaint is rife with evidence and statistics regarding the low number of Black NFL coaches.  For one, the complaint notes that of the thirty-two (32) NFL teams, only one employs a Black head coach.  Counterpose that to player make up; approximately 70% of all NFL players are Black.  The complaint alleges that the NFL has discriminated against Black head coach applicants in violation of §1981, but does not bring allegations based on a common discrimination statute, Title VII.  §1981 is more explicitly tied to race, and, specifically, makes illegal discriminatory preference given to whites in contract formation.  The complaint does, however, mention an intent to bring in Title VII claims at a later time, once the Equal Employment Opportunity Commission has fulfilled the administrative pre-requisites to allow Flores to bring a Title VII claim.

Statistically, Flores has made a great showing of racial disparity, and this discourse is not new, Lebron James in 2018 said that NFL owners are ‘old white men’ with a ‘slave owner mentality.’  This sentiment drew some criticism then, but seems to have been vindicated with time, though the outcome of Flores’ case is yet to be seen.  At the very least, Flores’ complaint exposes a pattern and practice of discrimination that, whether purposeful or not, should be reversed. 

Under §1981, a plaintiff has the burden of showing that non-white “persons” are not given the same opportunity to “make and enforce contracts” as white “citizens.”  In this particular case, the distinction between persons and citizens is not really at issue.  There are two main claims brought in the complaint, one that Black applicants have not had the same opportunity as white applicants to contract to be head coaches of NFL teams.  That is the ‘make,’ but there are also claims on the ‘enforce contracts’ where Flores claims that the NFL has engaged in “discriminatory retention practices and/or termination decisions.”  Essentially, Flores claims that Black applicants have a higher bar in actually getting the job, but once hired, they face more discrimination and more scrutiny which, ultimately, leads to greater levels of discipline and termination for Black coaches.

As noted above, Flores’ complaint is a class action, and brings in, as class members, all Black applicants for head coaches, offensive and defensive coordinators, quarterback coaches, and general managers.  It seems likely that the Court will not certify this class, and will hold that the positions are not so similar as to entertain a class action, but that will not revoke the merits of any claimant’s accusations of personal discrimination.  Regardless, Flores’ complaint has brought about significant media attention, and serves to show a growing discontent with the disparity between Black and white coaches and applicants.

If you feel you have been discriminated against at work, contact one of our employment attorneys today.

It is currently unclear whether or not the law will apply to companies that hire remote workers, independent contractors, or freelancers. States like California, Connecticut, Nevada, Rhode Island, Colorado and Washington have already adopted similar laws. When a similar salary disclosure law went into effect in Colorado, large companies, including Johnson & Johnson, explicitly stated in job postings that they would not hire remote workers in Colorado, as a means to sidestep mandatory salary disclosure legislation.

Large business groups and pro-business advocates in New York City are concerned the salary disclosure legislation sends a message that the city government is hostile towards free enterprise. They fear the law will inevitably stifle free trade and commerce in the city. Additionally, critics have characterized the salary disclosure law as a form of government overreach. However, proponents and advocates of salary disclosure laws in New York City argue that they will promote transparency and equality in the workplace. Supporters argue that salary disclosure laws are an effective tool to help close gender and racial wage gaps in the workplace. After all, the Pew Research Center found that women earned only around 84% of what men earned in 2020.

Although salary disclosure laws are designed to promote equality and transparency in the workplace, it remains unclear whether or not these laws are an effective measure to close the wage gap throughout the country. As more city and state governments begin to adopt similar laws, researchers and legal scholars will continue to explore and grapple with these questions. If you experienced employment discrimination or believe your employer has violated the New York City salary disclosure law, please contact one of our employment attorneys today.

 Since his appointment in 1994, Justice Breyer’s judicial opinions have been characterized by his granting of judicial deference to experts, his commitment to fundamental fairness, and reinforcement of democratic principles. Breyer has been described as a pragmatist and opponent to Justice Scalia’s famous idea of constitutional originalism. Breyer believed Judges should consider the framer’s intent in tandem with the practical consequences of respective judicial decisions. Breyer also cautioned the country against the politicization of our nation’s highest Court and rejected the notion of labeling Supreme Court justices as “liberal” or “conservative.” Justice Breyer was a key vote on decisions involving several of today’s most important issues including abortion, LGBTQ discrimination, the death penalty, and the First Amendment.

In 2020, Justice Breyer voted with the Court’s majority in Bostock to extend Title VII protections to LGBTQ individuals in the workplace and prevent discrimination. In Basten v. Saint-Gobain Performance Plastics Corp., Justice Breyer voted with the Court’s right-leaning justices and agreed that the Fair Labor Standards Act protects employees from retaliation for complaints under the law, regardless of whether or not the complaints were written or spoken. In other opinions, Justice Breyer defended and upheld Title VII’s anti-retaliation provision. 

Most recently, Breyer’s deference to experts was on full display in his dissenting opinion in NFIB v. Occupational Safety and Health Administration (2022). Although the Court’s majority ruled against President Biden’s COVID-19 vaccine or testing mandate, Breyer dissented. “It stymies the federal government’s ability to counter the unparalleled threat that COVID-19 poses to our nation’s workers,” Breyer wrote. “Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies.”

In Cedar Point Nursery v. Hassid (2021), the Court’s majority decided that a California law permitting labor unions to organize on private farms was a taking of private property without just compensation, thus violating the Fifth Amendment. Breyer dissented and noted that there was no “physical appropriation” of property, taking the pragmatic approach by alluding to the potential impact this decision could have on safety inspections in the workplace.

President Biden has once again vowed to nominate a Black woman to Justice Breyer’s seat. There are several notable candidates who are speculated to be on President Biden’s nominee shortlist. These include Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia, a Harvard Law grad and former clerk to Justice Breyer. Judge Brown Jackson worked as a public defender and worked on the U.S. Sentencing Commission. In the past, she authored several labor-friendly rulings. In a 2018 decision, Brown Jackson concluded that President Trump’s executive orders aimed at making it easier to fire federal employees and restricting how unions collectively bargain and represent employees, conflicted with the 1978 Civil Service Reform Act. “As to the merits of the unions’ contentions, while past precedents and pertinent statutory language indicate that the president has the authority to issue executive orders that carry the force of law with respect to federal labor relations, it is undisputed that no such orders can operate to eviscerate the right to bargain collectively as envisioned in the [statute],” she wrote. “In this Court’s view, the challenged provisions of the executive orders at issue have that cumulative effect.”

Biden might also nominate Justice Leondra R. Kruger of the California Supreme Court, a Yale Law grad and former clerk to Justice Stevens. The shortlist also includes Judge J. Michelle Childs, of the Federal District Court in Columbia, South Carolina, who is a USC Law grad. Whoever she may be, Justice Breyer’s replacement on the Court will have a key vote in major upcoming cases involving abortion, affirmative action, and the death penalty. It should also be noted that Biden’s nominee will likely face enduring and contentious confirmation hearings in a divided Senate and polarized political landscape.

In his retirement announcement, Justice Breyer referenced Lincoln’s Emancipation Proclamation and referred to the United States and our Constitution, as an “experiment.” Breyer noted, “It’s that next generation. And the one after that. My grandchildren and their children. They’ll determine whether the experiment still works and, of course, I’m an optimist and I am pretty sure it will.” Justice Breyer’s retirement is a monumental moment in United States history and will provide President Biden, the former chair of the Senate Judiciary Committee, his first opportunity to nominate a Supreme Court Justice.

On January 4, 2022, New York State updated the New York Labor Law (NYLL) to cover “Construction industry wage theft.”  NYLL §198-E now reads that any contractor “shall assume liability for any debt” created by wages owed to construction worker employees.  Specifically, the liability covered and incurred means that “the contractor shall be considered jointly and severally liable for any unpaid wages, benefits, wage supplements, and any other remedies.”  Stated differently, construction workers who are unpaid because a subcontractor’s business failed can now recover directly from the general contractor the wages they were owed.

The size of construction projects in New York are massive, and that necessitates a three, or sometimes more, tier structure of contract.  At the top is the general contract holder, the person or business who owns the right to build, say, a skyscraper.  In the middle tier are subcontractors, people and businesses who take on parts of the general contract.  For example, a general contractor may subcontract scaffolding to business X, window making to business Y, and office space design to business Z.

The construction workers make up the final tier; the women and men who actually do the various jobs outlined in the contracts.  Before January 4, 2022, the workers were out of luck if a subcontractor did not or could not pay them.  This is, unfortunately, not uncommon as subcontractors often work on thin financial margins and unexpected costs can be devastating.  This often falls on the shoulders of the workers, who cannot collect payment simply because there is no money left to pay.

Now, there is a greater level of protection for construction workers.  The general contractors, the top of the tier, are liable to construction workers when subcontractors fail to pay them.  This largely removes the primary barrier imposed by a subcontractor going under.  This will certainly have ramifications for construction work generally, but workers can appreciate a new protection.  If you are struggling to receive payment for your hard work, contact one of our employment attorneys today.

Today, the numbers are quite different, in fact, since March 2020, there has been a steady decline in unemployment rates, nearly on par with record lows in January 2020. This decline came as businesses and employees learned more about safely working around COVID-19, such as outdoor seating at restaurants and occupancy limits for crowded spaces. As these businesses saw the benefit in some protective measures, more intrusive ideas developed, such as mask mandates. While some believed that the intrusion was justified, others decried the mandates.

The main mandate at the center of contemporary controversy is the ‘vaccine mandate.’ The issue, however, is not one sided. There are, effectively, three types of vaccine mandates in play: general public mandates, federal employee mandates, and private employee mandates. Each raises various legal questions, and each has a unique legal remedy.

For general public mandates, this applies to everyone. New York City is a clear example of a general public mandate; the general public must show proof of vaccination to go to the Museum of Metropolitan Art, dine at restaurants, or go to the movie theatre. The City’s argument is that this mandate is justified to ensure that the spread of COVID-19 is limited by whatever means necessary. Beyond claiming unconstitutionality and having the law revoked, citizens have little remedy or ability to circumvent the mandate, absent a clear showing of a disability which prevents vaccination.

There is also a federal and, various States as well, employee mandate; all federal employees must be vaccinated to keep their jobs. This raises questions about the strength of the government’s power over its direct employees. The price of not complying with the federal employee vaccine mandate is termination. There are, however, opportunities to apply for religious or other exemptions from the mandate, and the Supreme Court has recently ruled against the Biden administration’s plans to implement vaccine mandates in the workplace for large businesses but upheld a vaccine mandate for healthcare workers.

In a similar vein are mandates by private employers. This tracks the same outcome, be vaccinated or lose your job, yet raises distinct questions of viability. Private employers are held to different standards than government employers for a number of reasons, and it is very feasible for the Supreme Court to decide that federal employees are not subject to mandates while private employees may be. However, it seems more likely that even so, businesses will have to consider exemption requests. Currently, there has been a large volume of terminations following failed attempts to receive an exemption, and if Plaintiffs can show that these exemptions were denied in bad faith, they may be able to successful win a case of religious discrimination.

This vaccinate-or-terminate issue is one of the most prominent employment law questions of the day. If you feel you have been discriminated against, or if your employer is requiring vaccination, contact one of our employment attorney’s today.

In many States, citizens can no longer dine-in at restaurants, attend sporting events, or go to the movies without showing proof of vaccination. As a result, COVID-19 vaccine mandates have raised a multitude of legal questions involving health concerns, personal autonomy, government overreach, and religious obligation.

The issue of whether vaccine mandates are constitutional has made its way to the Supreme Court of the United States. In October 2021, eight students challenged Indiana University’s requirement that unvaccinated students must obtain weekly COVID-19 tests in order to attend in-person classes. In August 2021, Justice Amy Coney Barrett denied a request for emergency relief in the Indiana University case, effectively allowing the University’s dual option vaccination and testing requirements to remain in effect.

The Court similarly failed to strike down vaccine mandates in cases involving healthcare workers in Maine and healthcare employees in New York. As a result of the Supreme Court’s refusal to hear these cases, legal scholars were skeptical that the Court would intervene in future cases involving vaccine mandates.

In January 2022, the Supreme Court blocked the Biden administration’s dual vaccine and testing requirement aimed at large businesses. The Occupational Safety and Health Administration (OSHA) announced their vaccine mandate in November 2021. If implemented, this mandate would have required all unvaccinated employees of large private businesses with over 100 employees to wear masks and get weekly coronavirus tests. This rule would have affected more than 80 million people. The Court ruled that the Biden administration’s OSHA vaccination and testing requirements were unconstitutional, agreeing with the legal arguments made by challengers from Republican-led states and business organizations. The Court stated, “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” This latest decision severely limits the President’s ability to enforce vaccination mandates through the federal agencies within the executive branch.

However, the Court did uphold a nationwide vaccination mandate for certain healthcare workers, specifically those who work at hospitals, nursing homes, and other facilities that participate in Medicare and Medicaid programs. This mandate affects more than 10.3 million healthcare workers nationwide but allows for some religious and medical exemptions.

The constitutionality of vaccine mandates has become a hot-button legal, moral, and political issue throughout the United States. While the Supreme Court has not completely ruled against all vaccine mandates, the Court’s 6-3 majority appears to disagree with vaccination mandates aimed at employees of large businesses throughout the country. Nevertheless, the influx of vaccination mandates imposed by the federal government, state governments, and private employers will continue to shape the everyday lives of millions of American workers.

If you believe you have been discriminated against or subject to a vaccination mandate at your place of work, contact one of our employment attorneys today.