U.S. Women's Soccer Mediation

The World Cup competing U.S. women’s national team (USWNT) players and the U.S. Soccer Federation will mediate over pay equity and workplace dignity issues following the conclusion of the tournament in France next month. U.S. Soccer and the 28 USWNT players suing the federation have tentatively agreed to mediation in the equal pay fight on the disparity between U.S. men's and women's national team players. Women players engaged in legal action, including filing with the U.S. Equal Employment Opportunity Commission and suing U.S. Soccer in federal District Courts. The USWNT Players’ Association and U.S. Soccer had agreed to a new collective bargaining agreement that ensured games would continue to be played, but failed to resolve many grievances like workplace discrimination on the basis of gender. Salary and workplace discrepancies are highlighted by global dominance of the U.S. women, especially when compared to the lackluster men's team. USWNT players contend they earn 62% less than males and have inferior travel, second-rate training facilities and more dangerous playing conditions. Employers accused of Equal Pay Act violations typically insist lawful explanations exist for differences in pay between male and female workers. The women also contend U.S. Soccer is violating Title VII of the Civil Rights Act of 1964 which makes it illegal for employers to use the gender of workers to determine pay. Employers often rebut the assertion that gender played any role in pay calculations citing supervisors’ evaluations of employees to distinguish them on bases other than their sex. Of course, U.S. Soccer rejects these and related claims, saying players negotiated the very rules that they are now contesting. It will be interesting to see what becomes of this dispute and whether the U.S. women can come home as champions heading into the negotiations. See full stories here-- https://lat.ms/2ZLPCiv and https://yhoo.it/2ID5kae

Judge Denies Sealing Confidential O'Reilly Settlements

This week, U.S. District Judge Deborah Batts, who is presiding over a federal defamation suit filed last year in New York refused to seal the confidential settlements reached between Bill O’Reilly and three women who accused the former Fox News host of misconduct. She rejected O’Reilly’s request to keep the agreements private, finding there is a long-established “general presumption in favor of public access to judicial documents.” She wrote that his concerns about disclosing “embarrassing conduct with no public ramifications” are not sufficient to trump the public’s right to view documents the court relies on to reach its decision in a case. “A possibility of future adverse impact on employment or the celebrity status of a party is not a ‘higher value’ sufficient to overcome the presumption of access to judicial documents,” Batts wrote. The judge noted, O’Reilly “asks the court to resolve a dispute by relying on the very documents he seeks to shield from public view.” Reportedly, the judge’s ruling creates an opening for attorneys to file the confidential agreements reached with the women who had accused O’Reilly of misconduct, and are now suing him for defamation for publicly dismissing their allegations as “politically and financially motivated” and part of a “smear campaign.” A former producer on The O’Reilly Factor who received a $9 million settlement was required to forfeit all audio recordings and written material — including notes, diaries, photographs, video recordings, letters and emails-- and to delete any computer files. She agreed to keep even the existence of such evidence confidential. Should the materials later become public, she was to disclaim them as counterfeit or forgeries and strict and complete confidentiality was the essence of this agreement. “The parties agree that the nature and terms of this settlement and agreement, including the existence of this agreement and the fact and amounts of any payments are to remain completely confidential.” A former Fox Business News host received a $3.25 million settlement from O’Reilly, a payout not previously disclosed. Under that settlement's terms, she could only disclose the amount of the payout to her tax advisers after the accountant signed a confidentiality agreement. The only person she told about the settlement was her husband. She, too, agreed to turn over any notes, recordings, emails, computer files or other documents dealing with any conversation she ever had with O’Reilly. The last woman received a settlement of about $100,000 as a junior producer at Fox News, in exchange for her silence. If anyone should ask what happened, she was to respond: “The matter has been resolved (or settled).” She also agreed not to disparage Fox News or any of its employees, including O’Reilly. The court opined that public would have no way to make sense of the its analysis of these claims with only partial or limited access to the settlement agreements. Just as with a Common Law right, she says, the First Amendment protects access to judicial documents if the documents “are necessary to understand the merits” of the proceeding. See full story here-- https://bit.ly/2EqvkA7 and link to ruling refusing to seal agreements here-- https://bit.ly/2GD1ZnZ

Divided Supreme Court Considers Workplace Arbitration

This week, the Supreme Court attempted to determine how far companies can go in insisting that disputes be resolved in individual arbitrations, rather than in court. The Court considered whether to give employers a powerful tool to bar class actions over workplace issues. The decision on this matter could affect some 25 million employment contracts according to the New York Times. A ruling in favor of employers, Justice Breyer said, could cut out “the entire heart of the New Deal” and undo an understanding of labor relations since the administration of FDR. Earlier cases ruled that companies doing business with consumers may require arbitration and forbid class actions in their contracts. Arbitration clauses with class-action waivers are commonplace in contracts for things like smartphones, credit cards, rental cars and nursing homes. Prior arbitration decisions have been closely divided, with conservative members in the majority. The justices now consider whether they should use a different approach for employment contracts. The answer depends on the interaction of two federal laws: the Federal Arbitration Act, which favors arbitration and the National Labor Relations Act, which protects workers’ rights to engage in “concerted activities.” Workers seeking to sue their employers for overtime pay and the like say the second law prohibits arbitration clauses that require class-action waivers. Reportedly, Justice Kennedy seemed ready to side with employers. Justice Gorsuch asked no questions. Justice Ginsburg said arbitration law was concerned with agreements between merchants of relatively equal bargaining power. The employment contracts at issue in the case, she said, have been forced on workers with "no true liberty of contract." In an unusual fashion, many cases were consolidated for a single oral argument and lawyers for the federal government actually appeared on both sides. Some justices suggested that workers could band together in a limited sense by hiring the same lawyer and filing individual arbitration cases. Justice Kagan suggested that was not good enough. See full article here-- http://nyti.ms/2yTgLUa Watch for decisions in: Epic Systems Corporation v. Lewis, No. 16-285, Ernst & Young v. Morris, No. 16-300 and National Labor Relations Board v. Murphy Oil USA, No. 16-307 which will be available this term here-- http://bit.ly/2yuxv7k

NLRB Invalidates UBER Arbitration Agreements

Last week, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) ruled an Uber Technologies arbitration agreement was unlawful. Uber was requiring its software engineers to sign an agreement that compelled arbitration of claims against the company. The ALJ found language in the agreement ambiguous as to employee rights to file charges with the NLRB, even though a provision in the agreement explicitly stated those interested in filing administrative charges could do so at the www.nlrb.gov website. Uber was ordered to rescind or revise its policy to more clearly state how employees can access NLRB processes. Uber is considering appealing the decision to the full NLRB, but has not yet done so. The U.S. Supreme Court is also currently considering a case in which employers are challenging the NLRB’s view that class action waivers in compulsory employment arbitration pacts violate the National Labor Relations Act (NLRA). Given this scrutiny, companies using or considering an arbitration program to resolve workplace disputes with employees should take care when drafting and implementing the agreements to account for recent NLRB decisions and guidance. Evidently, failure to do so may result in the program being partially or wholly invalidated. See more here-- http://bit.ly/2rI1Dt4 and http://bit.ly/2rIeaN9