The Lawletter Vol 46 No 3

Nadine Roddy—Senior Attorney, National Legal Research Group

            An exotic dancer was an "employee" of an adult entertainment club under the Fair Labor Standards Act ("FLSA"), even though a written agreement disclaimed an employment relationship, a federal district court sitting in Florida recently held in Schofield v. Gold Club Tampa, Inc., No. 8:19-CV-3097-VMC-TGW, 2021 WL 533540 (M.D. Fla. Feb. 12, 2021). The summary judgment evidence showed that the economic reality of the relationship was one of employer and employee given the degree of control over the dancer's work exercised by the club, among other factors.

            An exotic dancer who worked at an adult entertainment club brought suit against the club owner and its operator ("club"), seeking a ruling that she had been misclassified as an independent contractor, that she was the club's employee, and that she was thus entitled to employee's protections under the FLSA.

The Lawletter Vol 46 No 1

Nadine Roddy—Senior Attorney, National Legal Research Group

            An employer that discharges an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964, the Supreme Court held 6-3 in one of the last decisions of its October 2019 term. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). Title VII contains the well-known prohibition of discrimination in employment against an individual “because of” the individual's “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Writing for the majority, Justice Gorsuch explained that an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Thus, sex plays a “necessary and undisguisable role” in such decisions—precisely what Title VII forbids.

            Three cases were consolidated for this appeal. Each one started with an employer discharging a long-term employee soon after the employee revealed that he was homosexual or gender-transitioning—and allegedly for no other reason.

The Lawletter Vol 45 No 3

Nadine Roddy—Senior Attorney, National Legal Research Group

            On March 18, 2020, the federal Families First Coronavirus Response Act of 2020 ("Families First Act"), Pub. L. No. 116-127, was signed into law. The measure is the second in a series of recent legislative attempts to ameliorate the adverse health and economic effects of the novel coronavirus COVID-19 in the United States.  The Act applies to employers with fewer than 500 employees, and its major provisions require (1) paid sick leave, and (2) paid FMLA leave for child care during the pandemic. The Act's leave provisions are effective April 2, 2020 through December 31, 2020.

            A third piece of legislation, the Coronavirus Aid, Relief, and Economic Security Act of 2020 ("CARES Act"), Pub. L. No. 116-136, was signed on March 27, 2020. A massive relief package, it provides for increased public health spending, cash relief for individual citizens earning under $75,000 a year ($150,00 a year for married couples), enhanced unemployment benefits, a lending program for small businesses, and targeted relief for certain heavily impacted industries.

The Lawletter Vol 44 No 2

Nadine Roddy—Senior Attorney, National Legal Research Group

            When an arbitration agreement is in effect, who decides whether an employment dispute—or any dispute for that matter—is arbitrable? The Supreme Court recently released a pair of decisions that address this issue under the Federal Arbitration Act (FAA), Henry Schein, Inc. v. Archer & White Sales, Inc., ___ S. Ct. ___, 202 L. Ed. 2d 480, 2019 WL 122164 (Jan. 8, 2019), and New Prime, Inc. v. Oliveira, ___ S. Ct. ___, 2019 WL 189342 (Jan. 15, 2019).

            Each case involved an arbitration agreement that contained a clause delegating the issue of arbitrability of disputes to an arbitrator rather than a court. The Supreme Court had previously held that such clauses are enforceable under the FAA. Rent-A-Center W., Inc. v. Jackson, 561 U.S. 63 (2010) (applying 9 U.S.C. § 2). Some courts of appeals developed an exception to this general rule, holding that a court need not grant a motion to compel arbitration under § 4 of the FAA if the argument that the underlying claim is within the scope of the arbitration agreement is "wholly groundless." These courts reasoned that such an exception would enable courts to block frivolous attempts to transfer disputes from the court system to arbitration.

The Lawletter Vol 43 No 8

Nadine Roddy—Senior Attorney, National Legal Research Group

            The Age Discrimination in Employment Act ("ADEA") applies to all public employers, including those with fewer than 20 employees, a unanimous Supreme Court held in its first merits decision of the October 2018 term. Thus, the 20-employee minimum that applies to private employers does not apply to a state or its subdivisions. The 8-0 decision, Mount Lemmon Fire Dist. v. Guido, ___ S. Ct. ___, 202 L. Ed. 2d 262 (2018), resolves a split of authority between the Ninth Circuit on one hand and the Sixth, Seventh, Eighth, and Tenth Circuits on the other.