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Affinity Groups — Limiting Their Potential Use as Evidence of Discrimination Over the past several years, corporations have implemented various strategies aimed at supporting employees from diverse backgrounds. One such strategy is the use of internal "affinity groups." Affinity groups are typically formed based upon a common aspect of social identity, such as a protected characteristic like sexual orientation, gender, race, or national origin. Most employers and employees believe that their workplace benefits from increased diversity awareness. However, a recent case from the United States District Court for the Northern District of Illinois demonstrates that affinity groups must be properly structured so that they do not provide legal fodder for employees who challenge a corporation's employment actions.
So-called "no-hire" or "non-raiding" clauses, used by companies to prohibit a vendor or former employee from soliciting its current employees, have become increasingly common in California's mobile workforce. In some instances, these contracts go beyond a "no-solicitation" bar, and include an outright ban on hiring. Until recently, there has been little case law addressing the enforceability of such "no-hire" clauses. With the release of VL Systems, Inc. v. Unisen, Inc. this past month, California companies are now on notice that broad "no-hire" clauses may run afoul of state law.
The California Labor Code requires employers to furnish non-exempt employees meal periods and rest periods. Those employers who fail to do so must pay a "premium" consisting of one hour's pay to each affected employee for each day during which a violation occurs. The availability of these payments (mandated by changes in the law which took effect in 2000) has spawned a multitude of lawsuits in California by employees seeking recovery of the "premiums" on a class-wide or individual basis. However, until the California Supreme Court's recent decision in Murphy v. Kenneth Cole Productions, employers could not be certain whether their potential liability for premium payments stretched back a single year (under the theory that the payments are "penalties," subject to a one-year statute of limitations), or three years (under the view that the payments are "wages," subject to a longer limitations period).
The New York Court of Appeals, New York's highest court, has handed employers in the securities industry in New York a substantial victory. The decision in Rosenberg v. MetLife, Inc. resolved a split among New York courts as to whether statements made by an employer on the Uniform Termination Notice for Securities Industry Registration ("Form U-5") enjoy a qualified privilege or an absolute privilege under state law. The MetLife court held that statements made by an employer on Form U-5 are absolutely privileged and cannot give rise to a claim for defamation. The decision in MetLife grants member firms the freedom to candidly discuss the circumstances surrounding an employee's termination in the Form U-5.
Patricia Costello Slovak, "Rainmaking, Negotiating and Collaborative Development," LexisNexis® Women in the Legal Profession Summit, Philadelphia, Penn. (September 25, 2007) [Link] Schiff Hardin Labor and Employment Group |
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