October 19, 2021

Volume XI, Number 292

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October 19, 2021

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October 18, 2021

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Sexual Orientation Discrimination Suits, Tip Pooling, Successor Liability, Trade Secrets, Workplace Solicitation

This week’s stories include ...

(1) EEOC Files First Sexual Orientation Discrimination Suits

Our top story this week: The Equal Employment Opportunity Commission (EEOC) filed its first sexual orientation bias suits. Last year, the EEOC interpreted Title VII of the Civil Rights Act to prohibit discrimination against an individual for sexual orientation. The agency concluded that sexual orientation discrimination is a form of unlawful gender discrimination. This month, the agency filed two landmark federal lawsuits seeking to enforce its interpretation of the statute for the first time. The agency is suing on behalf of workers at a company in Baltimore and one in Pittsburgh for harassment based on sexual orientation. 

(2) Ninth Circuit Upholds DOL Rule Restricting "Tip Pooling"

In 2011, the Department of Labor (DOL) issued a rule that barred restaurant and hospitality employers from including kitchen staff in “tip pools,” which are sometimes used to meet an employer’s minimum wage requirements. The DOL ruled that kitchen staff should be excluded from pools even if the tips are not required to meet minimum wage obligations. Two district court decisions held that the department does not have the authority to regulate this practice outside of the minimum wage issue, but the Ninth Circuit recently reversed those decisions and upheld the department’s rule. 

(3) More from the Ninth Circuit: The Court Takes a Broad View of Successor Liability

Studer's Floor Covering in California had an agreement with the union that the company would contribute to the Resilient Floor Covering Pension Trust Fund for employees. When Studer's went out of business, a former staffer with the company started Michael's Floor Covering, leasing the same store and warehouse that Studer's had used. The pension fund believed Michael's was a successor to Studer’s and sued Michael's for more than $2 million in withdrawal liability. The Ninth Circuit found that an asset purchaser can be liable as a successor under the Multiemployer Pension Plan Amendments Act and remanded the case to the District Court, instructing it to look at the successorship factors again. 

(4) Gillette Denied Injunction of Former In-House Counsel

An in-house lawyer for Gillette left the company 10 years ago. Four years later, he became General Counsel for Shavelogic, a Gillette competitor. Gillette recently tried to obtain a broad injunction against the lawyer, who they claimed would inevitably disclose trade secrets in his position. The Massachusetts Superior Court’s Business Litigation Session ruled that there was insufficient evidence that trade secrets would be revealed, and any knowledge the counsel had of patents was likely outdated or general knowledge.

(5) NLRB Says Dish Network’s Solicitation Policy Is Illegal

The NLRB held that a call center worker was terminated in violation of the National Labor Relations Act for soliciting co-workers to join a lawsuit alleging his employer made unlawful wage deductions. The company had a policy prohibiting solicitation in the workplace, even during non-work time, without the approval of management. However, the NLRB stated that the company could not ban solicitation during nonworking time, and could not require employees to obtain management’s approval before they could engage in concerted activities relating to terms and conditions of employment. The NLRB ruled that Dish Network must alter its solicitation policy to allow employees to engage in concerted activities in work areas outside of work hours.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume VI, Number 74
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About this Author

George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney
Member

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...
212-351-3773
Jeffrey M. Landes, Epstein Becker Green, Employment Litigator, New York Lawyer
Member

JEFFREY M. LANDES is a Member of the Firm in the Labor and Employment practice, in the firm's New York office.

Mr. Landes' experience includes:

  • Counseling clients in a variety of industries—including financial services, retail and communications—in all facets of employment law, including compliance with EEO laws and other statutes governing the workplace, independent contractor issues, executive terminations, restrictive covenants, drug testing, background checks, employee discipline and...

212-351-4601
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