US Supreme Court Gives Rare Victory for Arbitration Opponents in a Narrow Case for Transportation Workers

By Sharon Gold

Over the past few decades, the US Supreme Court has become a very arbitration-friendly Court.  Indeed, in the last decade, the Court has upheld arbitration in numerous decisions.  This week, in a rare victory for arbitration opponents, the Supreme Court in New Prime Inc. v. Oliveira unanimously rejected arbitration for truck drivers who were classified as independent contractors under the narrow transportation exception.  At issue was an exception to the enforceability of arbitration clauses for “contracts of employment” of workers engaged as seamen, railroad workers or those engaged in foreign or interstate commerce under the Federal Arbitration Act.  Both parties in the case agreed that truck driver employees fell within the exception.  The questions at issue were: 1) Should the Court decide the initial issue of enforceability of arbitration or should an arbitrator; and 2) Whether the transportation exclusion applied to independent contractors rather than just employees.

The Court initially held that the decision of whether the exclusion applied was one for the Court to decide because it dealt with the statutory authority of the Court.  In another case decided by the Court this term, the Court held that the interpretation of an arbitration agreement, on the other hand, would be subject to review by an arbitrator who would then decide whether arbitration was proper.  Here, because the exclusion concerned the Court’s statutory authority to

Changes in the H-1B Visa Process

By Marianna Michael

It is time to begin working on your H-1B visa petitions for the fiscal year beginning October 2019.  The H-1B visa offers employers a means to temporarily hire international workers for positions that cannot be filled by U.S. workers.  There is a cap of 85,000 visas which can be issued, of which 65,000 are allocated for individuals who have a bachelor’s degree or its equivalent, and 20,000 are allocated for individuals who have a master’s degree or higher.  The H-1B visa is the method way many companies use to hire individuals with highly technical skills in science, technology, engineering and math.  The United States Citizenship and Immigration Services (“USCIS”) generally receives an overload of applications; 199,000 petitions were filed in 2018.

In addition to the high number of applications, there are other challenges for employers desiring to use the H-1B visas.  First, President Trump issued an executive order, “Buy American and Hire American: Putting Americans First,” which is

The Supreme Court of Kentucky Upholds Employees’ Right-to-Work

By Marianna Michael

The Supreme Court of Kentucky has rejected a challenge to Kentucky’s right-to-work law, which prohibits companies from requiring workers to pay union dues as a condition for holding a job.

The relevant provision, codified in KRS 336.130, states:

Notwithstanding subsection (1) of this section or any provision of the Kentucky Revised Statutes to the contrary, no employee shall be required, as a condition of employment or continuation of employment, to:

…

2. Pay any dues, fees, assessments, or other similar charges of any kind or amount to a labor organization.

Kentucky’s AFL-CIO and Teamsters 84 challenged the law. They argued that, pursuant to the Fifth Amendment, the law amounted to an unconstitutional taking from labor organizations that had previously required every worker in a union shop to pay dues, regardless of whether they joined the union. Additionally, they argued that the law was unconstitutional because the Kentucky Constitution prevents lawmakers from passing “special legislation” or laws targeting a specific group or class.

However, both the lower court and the Supreme Court of Kentucky disagreed. The lower court dismissed the case, reasoning that there would be no constitutional taking, since the law was not retroactive and contracts that are currently in existence will remain effective until the contracts expire. Additionally, the court’s opinion distinguished the legislature’s right to create laws and the court’s role in protecting the General Assembly’s ability to legislate. The Supreme Court of Kentucky affirmed the lower court’s ruling.

Stay Cool: Preventing Heat Illness in the Workplace

By Julie Laemmle

Heat-related hazards can affect a variety of workers and workplaces.  Without proper employer and employee precautions, exposure to heat can lead to worker injuries, diseases and fatalities; reduced productivity; and Occupational Safety and Health Administration (“OSHA”) citations and penalties.  To minimize any health or business risks, employers should be properly educated on the dangers of occupational heat exposure, understand their responsibilities and take appropriate steps to protect workers.

Heat-related illnesses include heat stroke, heat exhaustion, heat cramps, heat rash, heat fatigue and fainting.  Further, all of these illnesses can progress to much more serious conditions and could even lead to death.  Other heat-related risks

Sixth Circuit Issues Ruling Regarding Modified Work Schedules

By Amanda Warford Edge

Last week, the Sixth Circuit issued an opinion in Hostettler v. College of Wooster, — F.3d — (6th Cir. July 17, 2018), reminding employers that determining the essential functions of a position is a highly fact-specific endeavor.  In that case, the College of Wooster had hired Heidi Hostettler in 2013 when she was four months pregnant.  She worked as a full-time HR Generalist.  After giving birth to her child, Hostettler experienced severe postpartum depression and separation anxiety.  As a result, her doctor determined it was medically necessary that Hostettler work a reduced schedule, working on a part-time basis for the “foreseeable future.”  After two months of working a reduced schedule, Hostettler was fired for being “unable to return to [her] assigned position of HR Generalist in a full time capacity.”

Hostettler brought suit under the Americans with Disabilities Act (“ADA”)¹, 

Supreme Court Hands Public Sector Unions Major Setback

By Michelle D. Wyrick

In a 5-4 decision, the United States Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 et al., held that non-union members cannot be compelled to pay agency fees to the union, delivering a blow to public sector unions.  In doing so, the Court overruled Abood v. Detroit Board of Education, a 41 year old decision.

Janus involved a dispute between an Illinois state employee, Mark Janus, and a union about whether the union was permitted to collect agency fees from him, even though Janus chose not to join the union and disagreed with many of its public policy positions, including the positions it took in collective bargaining.  Under Illinois law, state employees are permitted to unionize.  If a majority of the employees in a bargaining unit votes to be represented by a union, that union becomes

Should Salary History be History? Circuit Court Holds Past Salary History Cannot Justify Unequal Pay

By Sharon L. Gold

In Rizo v. Yovino, the Ninth Circuit Court recently held that an employer cannot use an employee’s prior salary history as a ‘factor other than sex’ upon which a wage differential may be used under the Equal Pay Act.  The EPA prohibits employers from paying women less for the same job unless the difference is based on merit, seniority, quantity or quality of work or the catchall “any other factor other than sex.”  The court held that salary history was not a legitimate factor that was related to the job, and instead, employers should use factors such as experience, training, education or prior performance to set wages.  The en banc decision was unanimous.

This decision comes amid several states banning salary history as a permissible factor upon which to base pay.  According to the Department of Labor, women in the U.S. make on average 82 cents to a dollar of what men make in comparable jobs.  Proponents of banning the “salary history” question claim that