Second Circuit Rules Title VII Protects Sexual Orientation 2018-02-27T14:46:09-07:00

Posted on February 27, 2018

The Second Circuit joined the Seventh Circuit and the EEOC in ruling that Title VII protects individuals from discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775 (2nd Cir. February 26, 2018). The Second Circuit agreed with the Seventh that the law evolves. The court ruled that, even if the authors of Title VII never intended to protect people from discrimination based on sexual orientation, (a) the text of the statute says that employers may not discriminate “because of sex” and (b) discrimination on the basis of sexual orientation is, necessarily, logically, and as a result of “operationalizing” definitions, discrimination because of sex. The court relied on the EEOC’s 3 bases for its position – sexual orientation is defined by one’s sex, sexual orientation discrimination is sex stereotyping, and sexual orientation discrimination is discrimination based on a person’s association with others of the same sex.

The court’s opinion is laced with judicial views concerning the nature of law, the meanings of statutory terms, and the logic of relationships. Consequently, the issue seems headed for the Supreme Court, where we can expect a re-chopping of all its conclusions. In any case, the court took no position on whether statutory exceptions in Title VII or the Religious Freedom Restoration Act might immunize religious employers. So, we will see plenty more philosophical debate about sex in the lower courts too.

Time to Prepare H-1B Petitions 2018-02-22T18:04:44-07:00

Posted on February 22, 2018

By Carol Hildebrand

To seek H-1B “professional” work authorization for foreign recruits during 2018 employers should start now to get their preliminary Labor Condition Applications filed with the U.S. Department of Labor. Preparations must then be made for sending in Form I-129, “Petition for a Nonimmigrant Worker,” for each professional on March 30, 2018 to the U.S. Citizenship and Immigration Services.

On April 1, 2018 the limited annual H-1B quota becomes available once again. Employers seeking the H-1B status for a foreign professional can compete for the limited 3-year work authorization approvals that will be effective October 1, 2018. Only colleges, universities, and research institutions are exempt from the limited annual quota and need not be concerned about the timing of filing an H-1B petition.

High Court Narrows Dodd-Frank “Whistleblowers” 2018-02-21T14:30:05-07:00

Posted on February 21, 2018

By Chance Hill

The U.S. Supreme Court today endorsed a narrow definition of the term “whistleblower” in the context of the Dodd-Frank Act. Specifically, the Court ruled in Digital Realty Trust Inc. v. Paul Somers that whistleblowers qualify for the special relief provided under Dodd-Frank only if they take their allegations to the U.S. Securities and Exchange Commission (SEC). They may also take their allegations to the employer or supervisor, but Dodd-Frank relief only goes to those who inform the SEC.

The Dodd-Frank Act, passed in 2010, expanded whistleblower incentives and protections created under the 2002 Sarbanes-Oxley Act. The justices analyzed the specific wording of Dodd-Frank, which defined whistleblowers as employees who provide “information relating to a violation of the securities laws to the commission.”

The Sarbanes-Oxley Act continues to protect a broader category of people – including people who complain only to their employers. This ruling only limits claimants under Dodd-Frank.

EEOC Can’t Mess With Texas (Until Folks Have A Chance To Comment On Substantive Rule) 2018-02-09T13:14:43-07:00

Posted on February 9, 2018

By Chance Hill

The U.S. District Court for the Northern District of Texas has enjoined the Equal Employment Opportunity Commission (EEOC) from enforcing its guidance on background checks against Texas. The guidance, Texas argued, directly interferes with the state’s authority to impose bans on hiring felons and to be able to discretionarily reject felons for certain jobs. The EEOC has asserted that the burden is on the employer to show an absence of disparate impact in the context of these hiring decisions, given that certain racial classes are alleged to be disproportionately impacted by consideration of felony convictions as a barrier to employment. The Court did state in its order that a categorical denial of employment to all job applicants convicted of a prior felony “paints with too broad a brush.” But, ultimately, the Court enjoined the EEOC from enforcing its guidance against Texas until the EEOC has complied with the notice and comment requirements under the Administrative Procedures Act for promulgating a substantive rule.

Click here for case.

Loving the Competition 2018-02-05T15:59:05-07:00

Posted on February 5, 2018

By Mercedes Pineda

In a recent case, with some rather salacious details, the Third Circuit had the opportunity to examine employee liability under the Computer Fraud and Abuse Act (CFAA). Teva received a tip from a competitor’s former employee that one of Teva’s employees was funneling confidential information to the competitor. Alarmed, Teva promptly launched an investigation. The investigation revealed that Teva’s senior director of regulatory affairs was sharing confidential documents and trade secrets with her lover, the competitor’s CEO. The senior director had uploaded at least 900 documents to her personal cloud, emailed documents to her lover, and saved documents to a USB drive. Teva terminated the senior director and brought a CFAA claim, as well as other federal and state law claims.

Weighing in on the Circuit split, the court held that an employee is liable if they access a protected computer without authorization. Since the senior director had authorization to access Teva’s computers and the confidential information, she did not violate the CFAA, regardless of whether she misused the information. The court dismissed the CFAA claim, but allowed Teva’s other claims to move forward. Teva Pharmaceuticals USA Inc. v. Barinder Sandhu et al., No. 2:17-cv-03031 (3d. Cir. January 30, 2018).

Although the employee here was an executive the employer thought it could trust, this case should motivate employers to re-evaluate employee access to confidential information and how such information is protected. The ruling should also motivate employers to review and revise their computer access policies to narrowly define the types and methods of “authorized” access.

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