Kevin MacNeill

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Failure to state sexual harassment claim means other claims can be forced to arbitration

Photo of Kevin MacNeillBy Kevin MacNeill on Posted in United States
The U.S. District Court for the Southern District of New York recently held that, as a matter of first impression, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) does not invalidate a binding arbitration agreement if the plaintiff fails to plead a plausible sexual harassment claim. See: Yost v. Everyrelam, Inc. … Continue reading

Court of Appeals to decide if nonresident plaintiffs can prevail under NY human rights laws in failure-to-hire cases

Photo of Kevin MacNeillBy Kevin MacNeill on Posted in Discrimination and harassment, United States
In Syeed v. Bloomberg L.P. 2023 WL 350565, the New York Court of Appeals recently accepted certification of a question on state law put to it by the United States Court of Appeals for the Second Circuit, namely: Whether a nonresident plaintiff not yet employed in New York City or State satisfies the impact requirement … Continue reading

Monitoring and Management Tech is on the NLRB’s Radar

Photo of Kevin MacNeillBy Kevin MacNeill on Posted in United States
On October 31, 2022 the General Counsel of the National Labor Relations Board released a memo urging the Board to adopt a “new framework” for protecting employees from “intrusive or abusive” forms of electronic monitoring and automated management technologies that interfere with employee rights to self-organize and to engage in collective bargaining under Section 7 … Continue reading

NLRB Proposes New Rule Impacting Union Elections and Voluntary Recognition

Photo of Kevin MacNeillBy Kevin MacNeill on Posted in United States
The National Labor Relations Board is proposing to rescind its current rule that allows: Representation elections to proceed even when there are pending unfair labor practice charges alleging employee free choice has been compromised; Challenges to the representative status of a voluntarily recognized before there has been a reasonable period for collective bargaining; and, Election … Continue reading

Free menstrual products in Canadian federally regulated workplaces

Photo of Kevin MacNeillPhoto of Preston BraschPhoto of Erin ColwellBy Kevin MacNeill, Preston Brasch and Erin Colwell on Posted in Canada
The Minister of Labour for Canada has announced Proposed Regulations under the Canada Labour Code. If adopted, employers will have to, among other things: Provide menstrual products, including clean and hygienic tampons and menstrual pads, in each toilet room or, if that is not possible, in another location in the workplace controlled by the employer … Continue reading

D.C. Circuit vacates NLRB’s order on port union recognition

Photo of Kevin MacNeillBy Kevin MacNeill on Posted in United States
In a recent decision, Everport Terminal Services, Inc. v. National Labor Relations Board, the United States Court of Appeals for the District of Columbia Circuit granted petitions for review and vacated the National Labor Relations Board’s (NLRB) ruling that an employer had committed an unfair labor practice by favoring one mechanics’ union over another. Everport … Continue reading

Looking to the Horizon: Upcoming Strategy Reveal for the Equal Employment Opportunity Commission

Photo of Kevin MacNeillPhoto of Preston BraschBy Kevin MacNeill and Preston Brasch on Posted in United States
On September 22, 2022, the Equal Employment Opportunity Commission (EEOC) completed the last of three public sessions it conducted to solicit input on a forthcoming Strategic Enforcement Plan (SEP). In the past, the SEP has established substantive area priorities for the EEOC and set out strategies to integrate components of the EEOC’s private, public, and … Continue reading

Canada Labour Code Regulations to Require Reimbursement for Employee Expenses and More

Photo of Kevin MacNeillPhoto of Emma HamerBy Kevin MacNeill and Emma Hamer on Posted in Canada
Federally regulated employers take note: there are two new pending Regulations addressing (i) reimbursement of employees’ work-related expenses and (ii) the requirement to give new employees a written statement of employment conditions within the first 30 days of employment. Reimbursement for Reasonable Work-Related Expenses Time limit for reimbursement Employers will have to reimburse reasonable work-related expenses … Continue reading

Ninth Circuit to Reconsider California Law Restricting Employment Arbitration

Photo of Kevin MacNeillPhoto of Josh Owings (US)By Kevin MacNeill and Josh Owings (US) on Posted in United States
The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) recently said that it will take another look at California Assembly Bill 51 (AB 51), a state law affecting mandatory employment-related arbitration agreements.[1]  AB 51 prohibits employers from requiring that employees enter into mandatory arbitration agreements for disputes arising under the California Fair Employment … Continue reading

OSHA Plans Big Changes to Process Safety Management Standard

Photo of Kevin Mayer (US)Photo of Kevin MacNeillBy Kevin Mayer (US) and Kevin MacNeill on Posted in United States
The U.S. Department of Labor’s Occupational Safety and Health Administration is contemplating several, and extensive, changes to its existing Process Safety Management (PSM) standard, and will be seeking public comments. Broadly speaking, the PSM standard requires employers to implement safety programs that identify, evaluate and control highly hazardous chemicals. Contemplated changes to the current PSM … Continue reading

The Rising Tide of Pay Transparency Legislation – How Employers can Prepare

Photo of Kevin MacNeillPhoto of Preston BraschBy Kevin MacNeill and Preston Brasch on Posted in United States
Several jurisdictions are in the process of passing, or have already passed, pay transparency legislation, including California, Colorado, Maryland, New York State, New York City, Rhode Island, and Washington, with some new legislation potentially coming into force in early 2023. While specifics vary based on the jurisdiction, below are some of the key emerging employer … Continue reading

2nd Circuit finds that Terminated Whistleblower Employees Must Prove Retaliatory Intent in Sarbanes-Oxley Act Lawsuits

Photo of Kevin MacNeillPhoto of Preston BraschBy Kevin MacNeill and Preston Brasch on Posted in United States
In a recent decision, Trevor Murray v. UBS Securities, LLC, the United States Court of Appeals for the Second Circuit considered section 1514A of the Sarbanes-Oxley Act (SOX), which protects employees of publicly traded companies from adverse employment actions that “discriminate against an employee . . . because of” any lawful whistleblowing act. On appeal, … Continue reading

D.C. Circuit Draws Line Between Protected Labor Activities and Discipline-Worthy Employee Misconduct

Photo of Kevin MacNeillBy Kevin MacNeill on Posted in United States
Section 7 of the National Labor Relations Act (Act) gives employees the right to form unions, bargain collectively and to “engage in other concerted activities for the purpose of … mutual aid or protection”. Speaking out about conditions of employment on behalf of a group of employees would fall  within this protection. And, section 8 … Continue reading

11th Circuit decides Retaliation Protections do not Protect Prior Misconduct

Photo of Kevin MacNeillPhoto of Preston BraschBy Kevin MacNeill and Preston Brasch on Posted in United States
In a recent decision, Nazarie Anderson v. Emory Healthcare Inc., the United States Court of Appeals for the Eleventh Circuit affirmed a district court’s order granting summary judgment in favor of Emory Healthcare Inc. (Emory), who had defended against a former employee’s retaliation claim under Title VII of the Civil Rights Act of 1964, 42 … Continue reading

9th Circuit Says NLRB Can Order Employer to Pay Union’s Legal Fees Incurred in Collective Bargaining

Photo of Kevin MacNeillBy Kevin MacNeill on Posted in United States
The National Labor Relations Act (Act) states that it is an unfair labor practice for an employer to refuse to bargain collectively with its employee representatives (i.e. a union). Recently, the United States Court of Appeals for the 9th Circuit confirmed that when this happens, an employer may have to reimburse its union the legal … Continue reading

When responding to a union’s request for information, employers should look before they leap

Photo of Kevin MacNeillBy Kevin MacNeill on Posted in United States
A recent National Labor Relations Board decision, General Aire Systems, Inc. (371 NLRB No. 120), reminds employers of some pitfalls they may face when handling a union’s request for information, and steps that may be taken to minimize associated legal risks. By way of background, when a union has a collective bargaining relationship with an … Continue reading

New York State bill raises the stakes for employer safety liability: lifts caps on restitution and imposes significant fines for workplace deaths and injuries

Photo of Kevin MacNeillPhoto of Preston BraschBy Kevin MacNeill and Preston Brasch on Posted in United States
A New York State bill, “Carlos’ Law”, is currently before Governor Hochul for signing, after having been passed both by the Senate and Assembly. The bill’s Sponsor Memo states that its purpose is “to protect workers from corporations and their agents that fail to comply with safety protocols. . .” and recalls that more than … Continue reading

New Requirements for New York Employers Engaged in Electronic Monitoring to Come Into Effect May 7, 2022

Photo of Nandini Rao (US)Photo of Kevin MacNeillBy Nandini Rao (US) and Kevin MacNeill on Posted in United States
A new law, which amends the New York Civil Rights Law, will require New York employers to provide notice before monitoring employee electronic communications. The amendment takes effect on May 7, 2022. What does the new law require for employers? The new law requires that New York employers fulfill three requirements before electronically monitoring their … Continue reading
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