Brady's Benching Gives Lesson in Court Review of Arbitration Decisions


Earlier this week, Bills and Jets fans (and at least one Packer fan) rejoiced as the Second Circuit Court of Appeals reinstated the NFL’s four-game suspension of New England Patriots quarterback Tom Brady based on a finding that Brady had participated in a scheme to deflate footballs and attempted to cover it up. In the days that have followed, the sports media offered countless analyses of the court’s decision with varying degrees of legal sophistication. Many of those analyses missed a fundamental point: the integrity of collective bargaining and agreed-upon arbitration processes demand that courts have very little ability to second-guess the conclusions reached by an arbitrator. Continue reading this entry

Protecting Trade Secrets Now Front, Center and National


Most employers understand, in this era where information moves so quickly and critically sensitive commercial information is very easy to move, that protecting trade secrets is more important than ever. In fact, the U.S. Senate Judiciary Committee reports that annual losses to the American economy caused by trade secret loss are over $300 billion in revenue and 2.1 million in jobs. Against this backdrop, Congress has undertaken recent efforts to enact federal trade secret legislation to impose a federal protection scheme previously left primarily to state law. Continue reading this entry

Orchestra Left Without A Chair When The Music Stops: Another Independent Contractor Misclassification


How independent are musicians who play and perform with others? Do they have more artistic control on their own, or do they only become truly great artists in collaboration with others when their independent talents combine to make incredible music? We suspect David Lee Roth, Sammy Hagar, Richie Sambora, and others who have “gone solo” and played in multiple groups might have interesting opinions on this issue.

However, if you sit up straight as soon as the conductor raises his baton, does that automatically make you an employee? According to the courts and the government, the answer appears to be yes. Beyond musicians, these recent developments can be tied more broadly to the ongoing scrutiny with “employee” versus “independent contractor” classifications. Continue reading this entry

Everyone Keeps Focusing On Independent Contractors, So We Will Too…


If it looks like “Independent Contractor vs. Employee Week” on Labor & Employment Law Perspectives, that may be a function of the fact that misclassification of employees as independent contractors has been a hot topic for some time and shows no signs of cooling down. There is a focus on the topic by the U.S. Department of Labor (DOL) as well as frequent litigation in both state and federal courts challenging the classification of independent contractor workers as employees. Given the amount of litigation and legal ink continuing to be spilled on the topic, it never hurts to revisit the kinds of questions implicated by this topic. When is an independent contractor more accurately categorized as an employee? What are the consequences of getting it wrong? Continue reading this entry

Government Outlines Key Labor and Employment Initiatives


Representatives of the Equal Employment Opportunity Commission (EEOC), as well as the Department of Labor and the Department of Justice (DOJ), participated in an American Bar Association Equal Opportunity Law conference in Austin, Texas, this month. During that conference, EEOC representatives, including three of the commissioners and general counsel David Lopez, addressed a number of key topics and initiatives on EEOC’s plate relating to current EEOC Strategic Enforcement Plan priorities:

  1. Eliminating barriers in recruiting and hiring
  2. Protecting immigrant, migrant, and other vulnerable workers
  3. Addressing emerging and developing issues
  4. Enforcing equal pay laws
  5. Preserving access to the legal system
  6. Preventing harassment through systemic enforcement and targeted outreach

We summarize below the discussions on several of these themes suggestive of how the various government agencies involved in labor and employment issues view these issues – at least for the remainder of the current administration. Continue reading this entry