Polsinelli at Work |  Labor & Employment Blog

Employers, whether large or small, face an ever-growing web of workplace regulations and potential entanglements with employees. With employment litigation and advocacy experience as our strength, preventing legal problems from arising is our goal. Our Labor & Employment attorneys advise management on complex employee relations and workplace issues. 20 offices; 800+ attorneys. 


Companies May Be Liable for Hostile Environment Caused by Non-Employees

Companies May Be Liable for Hostile Environment Caused by Non-Employees

By Karen R. Glickstein

 A recent decision by the United States District Court for the District of Delaware serves as an important reminder that employers may be held liable for acts of harassment by individuals with whom their employees come in contact, even when those individuals are not employees. In Poe-Smith v. Epic Health Services, Inc., a home health care worker filed suit against her employer alleging that the relative of one of the home health patients to whom she was assigned had created a hostile environment.

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Ninth Circuit Confirms that PAGA Claims Can Be Compelled to Arbitration; California Appellate Court Disagrees

Ninth Circuit Confirms that PAGA Claims Can Be Compelled to Arbitration; California Appellate Court Disagrees

By Anne Cherry Barnett and Michele Haydel Gehrke

On March 3, 2016, the Ninth Circuit ruled in Valdez v. Terminix International Company, et al. that California Private Attorney General Act (PAGA) claims can be compelled into arbitration based on arbitration clauses in employee contracts to which the State of California is not a party. While the Valdez decision is unpublished and without precedential value, it provides guidance on the Federal Court’s interpretation of how individual arbitration agreements impact potential PAGA claims in California. 

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Strategic Discovery of Third-Party Litigation Funding in Class and Collective Actions

Strategic Discovery of Third-Party Litigation Funding in Class and Collective Actions

By Stan Hill

Third-party litigation funding is marketed as a means of broadening access to justice by providing plaintiffs with resources to litigate in exchange for a cut of any monetary recovery. Some commenters have rebuked third-party litigation funding as an ethical quagmire and illegal champerty—stirring up litigation merely for a share of the proceeds. But where the plaintiff, at least on paper, remains in control of the litigation, courts have generally permitted third-party litigation funding.

With presently few legal restrictions, third party litigation funding has the potential to fund almost any lawsuit, including employment class and collective actions. How can employers sued on the back of third-party litigation funding discover this fact and use it to their advantage in litigation?

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DC Circuit Overturns NLRB’s Assertion of Jurisdiction over Airline Contractor

DC Circuit Overturns NLRB’s Assertion of Jurisdiction over Airline Contractor

By Michele Haydel Gehrke

In an important decision for the airline industry and its contractors, the United States Court of Appeals for the DC Circuit in ABM Onsite Services – West, Inc. v. NLRB overturned a decision by the National Labor Relations Board (NLRB) asserting jurisdiction over an airline contractor in a representation dispute involving baggage handlers at the Portland airport. The Court specifically held that by adopting the National Mediation Board’s “whittl[ed] down version of its “control test,” the NLRB acted arbitrarily and capriciously when asserting jurisdiction over an entity that is a contractor for airlines (which historically have been subject to the RLA, not the NLRA). As a result, the Court remanded the case to the NLRB to either offer a reasoned explanation for departing from the traditional six-factor jurisdictional test, or refer the matter to the NMB to explain why it changed its jurisdictional analysis so the NLRB could determine whether it (the NLRB) agreed with the NMB’s modified approach. 

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USCIS to Suspend Premium Processing of H-1B Applications

USCIS to Suspend Premium Processing of H-1B Applications

By Jeffrey S. Bell

Beginning on April 3, 2017, United States Citizenship and Immigration Services (USCIS) will suspend processing of all H-1B petitions. USCIS reports the suspension may last up to six months. The suspension applies to all H-1B petitions filed on or after April 3, 2017, and as H-1B petitions filed as part of this year’s H-1B lottery may not be received prior to April 3rd, all H-1B lottery petitions are also included in the suspension. According to USCIS, the suspension is needed to better allocate adjudications resources and help reduce overall H-1B processing times, which are presently running six to eight months.

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