United States: US Employment Litigation Round-Up For September 2018

Recent Cases and New Laws Affecting Employers

New NY Workplace Sexual Harassment Training and Policy Requirements Come into Effect

Upcoming Requirements: As described in the April 2018 Round-Up, New York State and New York City earlier this year each passed a package of laws strengthening worker protections against sexual harassment. While many of the substantive provisions have already come into effect, additional new policy and training requirements are newly effective. As of October 9, 2018, New York State employers are required to adopt updated sexual harassment policies, including a required sexual harassment complaint form and detailed information about how and when to file a claim. Employers may choose to adopt a "model" policy prepared by the state or one that is substantially similar.

In addition, both New York State and New York City will soon require employers to provide annual interactive sexual harassment training to their employees. The state has already issued sample training materials, and the city expects to do so in the coming months. Employers must use either these materials or ones that are substantially similar. Employers in New York City, of course, will have to comply with the requirements of both the state and the city. Under the state law, all employees must be trained with approved materials by October 2019. New York City's training requirements come into effect on April 1, 2019, but the city has yet to establish a deadline by which the first training must occur.

Be on the lookout for a Legal Update from Mayer Brown providing more detailed information on these issues.

Ninth Circuit Reverses Class Certification in Uber Lawsuits Based on Arbitration Agreements

Decision: The Ninth Circuit has reversed class certification in several putative class actions filed on behalf of drivers on Uber's platform, citing those drivers' arbitration agreements.  In O'Connor v. Uber Technologies, Inc., current and former drivers filed several related putative class actions contending that Uber violated various California and federal statutes, including by allegedly misclassifying drivers as independent contractors rather than employees.  Although the drivers had entered into arbitration agreements with Uber that  included class action waivers, the district court had denied Uber's motion to compel arbitration, holding that the arbitration agreements were unenforceable under California law.  The district court granted class certification and placed restrictions on Uber's use of arbitration agreements with drivers.

The Ninth Circuit reversed.  Relying on its 2016 decision in Mohamed v. Uber Technologies, the court emphasized that the arbitration agreements had delegated the threshold question of arbitrability to the arbitrator and that the delegation was valid.  The Ninth Circuit rejected plaintiffs' argument that, by opting out of arbitration, the lead plaintiffs in O'Connor had "constructively opted out of arbitration on behalf of the entire class," holding that "[n]othing gave the O'Connor lead plaintiffs the authority to take that action on behalf of and binding other drivers," and that the Federal Arbitration Act would preempt any state-law rule permitting that effort.  The court also rejected plaintiffs' argument that the National Labor Relations Act (NLRA) rendered the class waiver in the arbitration agreements unenforceable in light of the Supreme Court's decision in Epic Systems Corp. v. Lewis

The Ninth Circuit thus reversed the district court's orders denying Uber's motion to compel arbitration and granting class certification. 

Impact: The Ninth Circuit's decision marks a significant victory for businesses. It underscores that the appropriate use of arbitration agreements provides companies and independent contractors with an alternative to class action litigation in court.  

Illinois Provides Paid Break Time for Nursing Mothers

Development: Effective upon its August 21, 2018 enactment, Illinois now provides expanded benefits for nursing mothers in the workplace. The Illinois Nursing Mothers in the Workplace Act was amended to require employers to provide paid break time for nursing mothers to express breast milk for up to one year after a child's birth, regardless of the length of the break. The act previously required employers to provide "reasonable unpaid break time each day" for expressing breast milk, and employers were permitted to require that this break time run concurrently with existing compensated break time otherwise provided by the employer, with any time exceeding the existing break being unpaid. The amendment made several significant changes to the act's requirements:

  • The word "unpaid" has been removed.  Instead, employers must provide "reasonable break time" to an employee "each time the employee has the need to express milk," and this break time "may not reduce an employee's compensation" regardless of the break's length.
  • While the law previously stated that lactation breaks "must, if possible," run concurrently with other break time, the amendment provides that lactation breaks "may" run concurrently with break time already provided by the employer but do not have to, and that such breaks must be given "as needed by the employee."
  • The amendment clarifies that the entitlement to lactation breaks extends for a period of "one year after a child's birth."
  • The amendment replaces the exemption permitting employers to deny lactation breaks if doing so would "unduly disrupt the employer's operation" with a significantly higher burden that permits employers to deny breaks only if they would "create an undue hardship" on the employer.

Effect: The amendment took effect immediately upon enactment. If they haven't already, employers in Illinois should promptly review and update their lactation accommodation policies to ensure compliance with the amended act and should train their managers and supervisory personnel regarding the new requirements. Employers should also take steps to ensure that their timekeeping and payroll practices and policies reflect the amended law.

Second Circuit Revives Employee's Title VII Claims for Sexual Orientation Discrimination

Decision: On September 10, 2018, the Second Circuit in Cargian v. Breitling USA, Inc., issued an order vacating the district court's order granting summary judgment to the employer in the plaintiff's sexual orientation discrimination action. Applying its recent en banc decision in Zarda v. Altitude Express, Inc., the appellate court held that the district court incorrectly concluded that discrimination based on sexual orientation is not actionable under Title VII of the Civil Rights Act of 1964. The Second Court emphasized that, although the district court had applied the Second Circuit law in effect at the time the summary judgment order was entered, Zarda overruled prior Second Circuit precedent, holding that Title VII does prohibit discrimination on the basis of sexual orientation. Accordingly, the Second Circuit reversed the summary judgment order and remanded the case to the district court to consider whether the "[plaintiff's] claims can survive a motion for summary judgment [on his sexual orientation discrimination claim] after Zarda altered that legal landscape."

Impact: As discussed in the March 2018 Round-Up, the question of whether Title VII prohibits discrimination on the basis of sexual orientation has been actively debated in both courts and administrative agencies. In February 2018, the Second Circuit joined the Seventh Circuit in holding that sexual orientation discrimination constitutes unlawful sex discrimination under Title VII. The Eleventh Circuit, on the other hand, has held that Title VII does not prohibit sexual orientation discrimination. While the Supreme Court will likely eventually be called on to resolve this circuit split regarding the scope of Title VII, a growing number of state laws and local ordinances prohibit sexual orientation discrimination, requiring attention from employers nationwide.

Connecticut District Court Holds Refusal to Hire Marijuana User Is Discriminatory

Decision: In Noffsinger v. SSC Niantic Operating Company, a district court in Connecticut recently held an employer liable for discriminating against a job applicant when it rescinded an employment offer after the applicant tested positive for medical marijuana use. The applicant was a registered medical marijuana user under the Connecticut Palliative Use of Marijuana Act ("PUMA") and had disclosed her disability and prescription marijuana use before taking a pre-employment drug test. Nonetheless, after the applicant tested positive for marijuana, the employer rescinded the offer of employment. The employee filed suit, alleging, among other claims, that the nursing home had violated PUMA's anti-discrimination provision, which bars employers from refusing to hire a person or otherwise penalizing an employee "solely on the basis" of the person's "status as a qualifying [medical marijuana] patient" under state law. The court granted partial summary judgment to the employee, concluding that she had successfully asserted a PUMA discrimination claim.

The district court rejected the employer's assertion that it was exempt from PUMA's anti-discrimination provision because the statute allows discrimination if it is required by federal law, and the federal Drug Free Workplace Act ("DFWA") barred it from hiring plaintiff. The district court concluded that DFWA neither requires drug testing nor prohibits employers from employing individuals who use illegal drugs outside of the workplace, "much less an employee who uses medical marijuana outside the workplace." "That [the] defendant has chosen to utilize a zero tolerance drug testing policy in order to maintain a drug free work environment does not mean that this policy was actually 'required by federal law.'" The court also disagreed with the employer's argument that it had not discriminated against the applicant on the basis of her "status" as a medical marijuana patient but rather based on her use of marijuana itself. The court found that such a "restrictive interpretation of the statute" would "render the statute's protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana."

Impact: The district court's employee-friendly decision in Noffsinger under Connecticut law differs from the approach taken by most courts in other states that have enacted medical or recreational marijuana laws. Courts in Oregon, California and Colorado have permitted employers to enforce zero-tolerance drug testing policies and take adverse employment action against employees or applicants who test positive for marijuana based on federal law, which prohibits such use. In another approach, the Massachusetts Supreme Court, recently ruled that an employee may pursue a disability discrimination claim under state law against her former employer for failing to accommodate the employee's use of medical marijuana by making an exception to its drug policy. Given the differing views and evolving nature of this area of the law, employers should stay abreast of developments and modify their drug-related policies accordingly.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2018. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions