Workforce Bulletin

Case law related to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) continues to develop.  In late 2024, the Third Circuit seemed poised to bring further clarity as to which claims fall within the EFAA and, therefore, are shielded from pre-dispute arbitration agreements. On April 6, 2025, the Court provided guidance related to the timing of “disputes” as used in the statutory text, but remanded for further consideration of whether an arbitration agreement existed at all under New Jersey law. Cornelius v. CVS Pharmacy, Inc., 2025 WL 980309 (3d Cir. Apr. 2, 2025).

Cornelius was a longtime CVS employee who alleged that she experienced discrimination from her male supervisor. After Cornelius filed numerous internal complaints, CVS terminated her employment in November 2021. She brought a Charge to the EEOC, received a right-to-sue letter, and filed a lawsuit in the U.S. District Court for the District of New Jersey. CVS moved to compel arbitration pursuant to its “Arbitration Policy.” Plaintiff opposed, arguing that the EFAA rendered the arbitration agreement unenforceable as to her claims.  The District Court disagreed, ruling that the EFAA did not apply to Cornelius’s claims because “her claims did not constitute a ‘sexual harassment dispute’” within the meaning of the statute, and compelled arbitration. Id. at *2.

The Tenth Circuit recently reaffirmed that employers may lawfully enforce a policy against surreptitious recordings.

In Spagnolia v. Charter Communications, LLC, the United States Court of Appeals for the Tenth Circuit unanimously affirmed a District of Colorado order granting employer Charter Communications, LLC’s (“Defendant”) summary judgment on claims filed by plaintiff Heather Spagnolia (“Spagnolia”), who asserted that she was fired in retaliation for making reasonable requests for lactation accommodations. The issue before the appellate court was whether Defendant’s proffered reason for terminating Spagnolia (secretly recording meetings with her supervisors in violation of company policy) was pretextual. 

Both courts agreed that Spagnolia’s violation of the policy against surreptitious recordings was a lawful basis for termination, and that Spagnolia failed to show that this was pretextual.

Background

In 2017, Spagnolia moved to Colorado to work for Defendant as a Regional Operations Center Specialist. From April to July 2019, Spagnolia took leave under the federal Family and Medical Leave Act to give birth to her second child. When she returned to work in July 2019, Spagnolia’s supervisor mistakenly permitted her to take paid lactation breaks, even though Defendant’s written policy provided for unpaid lactation breaks. During that time, Spagnolia’s lactation breaks lasted for an average of two hours per day, and sometimes up to three hours—in addition to her lunch break and regular paid breaks.

The New York City Council recently amended Sections 8-109 and 8-502 of the New York City Administrative Code, directly affecting employment agreements.  

Under the New York City Human Rights Law (NYCHRL), employees have one year to file a complaint or claim with the New York City Commission on Human Rights (NYCCHR) for unlawful discriminatory practices or acts of discriminatory harassment or violence. Employees have three years to file a claim of gender-based harassment. The statute of limitations for commencing a civil action under the NYCHRL is three years.

Effective May 11, 2024, the amendments to Sections 8-109 and 8-502 of the NYCHRL prohibit provisions in employment agreements that shorten these statutory periods for filing complaints or claims with the NYCCHR or commencing civil actions under the NYCHRL. Below we outline the key implications of this new law for employers.

Recently, a Georgia federal district court permitted an employer’s counterclaims against its former employee-whistleblower to proceed in a False Claims Act (“FCA”) lawsuit after determining that the employer’s amended counterclaims for breach of fiduciary duty and breach of contract were sufficiently independent from the underlying FCA claims to survive a motion to dismiss, despite significant factual overlap. The decision in U.S. ex rel. Cooley v. ERMI, LLC, et al.., a qui tam FCA action where the plaintiff, known as a “Relator,” brings the claim on behalf of the ...

On November 1, 2022, in Dusel v. Factory Mutual Ins. Co., the First Circuit Court of Appeals held that “close temporal proximity” alone does not establish pretext as this evidence “must be considered alongside the . . . record.” Nor does mere close temporal proximity establish pretext where the employer has a legitimate business reason for taking adverse action against the employee, and more particularly, where the employer subsequently discovers the employee’s misconduct in a separate, unrelated matter. Dusel is a win for employers because it signals that engaging in protected activity will not immunize an employee from the consequences of misconduct that violates company policy if the employer enforces its policy consistently and documents the reasons underlying the employee’s discipline.

Earlier this year, the New York State Workers' Compensation Board adopted amendments to the regulations for the New York Paid Family Leave Benefits Law clarifying that when Paid Family Leave (PFL) is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week.

On Monday, October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40 (the “Order”) prohibiting vaccine mandates by any entity. The Order, which was effective upon issuance, states: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” It provides for a maximum fine of up to $1,000 per violation for any failure to comply with the order ...