Now more than ever, we are aware of the close interplay between mental and physical health. Historically, our health care system has too often turned a blind eye to mental health conditions—simply treating and providing coverage for physical ailments and sending patients on their way. Health insurance companies both reflected and exacerbated this problem, providing no or wholly inadequate coverage for mental health services. The 2008 passage of The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act—commonly known as the Parity Act—was a giant leap forward in outlawing discrimination by insurers against mental health services. Under the Parity Act, if a health plan covers both medical/surgical conditions and behavioral health conditions (i.e., mental illnesses or substance use disorders), it must provide benefits for both types of conditions “at parity” – that is, on an equal basis. This means, for example, if a plan covers routine outpatient services in a doctor’s office to treat medical conditions like strep throat, it must also provide comparable coverage for outpatient services in a therapist’s office for treatment of depression or an opioid addiction.

• ERISA
• Parity Act

In October 2019, the Maryland State Bar Association’s Committee on Ethics published an opinion discussing a Maryland attorney’s duty to report the unauthorized practice of law by a non-Maryland attorney. A footnote to the opinion states:

It is worth noting that other jurisdictions have self-reporting requirements for licensed attorneys who are disciplined for violations of rules of professional conduct in other jurisdictions. See, Rule 8.3 of the Virginia Rules of Professional Conduct. Maryland does not impose a similar obligation on its attorneys.

• Legal Ethics

Discrimination doesn’t just include refusing to hire someone based on a protected characteristic, such as race or gender. Harassment based on a protected characteristic can also give rise to a discrimination claim, if the harassment is “severe or pervasive enough” to create a hostile work environment. 

Even before the COVID-19 pandemic, the number of employees working from home was skyrocketing. But now, that trend has accelerated even faster. This raises the question: can an employee suffer from a hostile work environment—while working from home?

• Harassment
• Discrimination

The coronavirus pandemic has already had a massive impact on businesses. Many companies have announced layoffs, furloughs, or unpaid leaves of absence. 

Employers aren’t prohibited from firing employees. Employment relationships are usually at-will, meaning that employees can be fired for any reason or no reason at all. Of course, there are still boundaries that apply, such as laws prohibiting discrimination and retaliation.

• COVID-19

The recent coronavirus outbreak raises a host of employment-law issues. For example, the Occupational Safety and Health Act requires employers to take measures to eliminate or reduce dangerous hazards to their employees. The Family and Medical Leave Act mandates leave for “serious health conditions,” raising questions as to whether an infected employee is legally entitled to leave. And Title VII of the Civil Rights Act prohibits discrimination based on national origin, so an employer can’t tell someone not to come to work just because he or she is from China or Italy.

• Workplace Conditions (Occupational Safety and Health)
• COVID-19

Many employers strongly prefer arbitration to litigating with their employees in court. Employers often believe—and the Supreme Court has agreed—that arbitration of employment disputes has many benefits, including potential cost savings, more limited discovery, a greater ability to keep the dispute confidential, and speedier resolutions.

• Arbitration

Can a news organization avoid a discrimination claim by arguing that it was exercising its First Amendment right to choose who writes the news?

That’s the question that the California courts have been grappling with in Stanley Wilson’s case against CNN. And that question has now been answered in Wilson’s favor. 

• Civil Litigation
• First Amendment

Under the National Labor Relations Act (NLRA), employees have a right of collective action, and employers are prohibited from interfering with that right. But these provisions can conflict with an employer’s desire and ability to regulate conduct in the workplace. 

One such conflict arises when employers conduct internal investigations. Employers may want to keep those investigations confidential, so that employees do not spread information about them through the workplace or coordinate their responses.

• Whistleblowers

As readers of this blog know, corporate executives (and regular employees) are often subject to non-competes in their employment agreements, as well as other provisions designed to ensure that if they leave their job, they will not be able to work for a competitor for some period of time.  By contrast, law firms are ethically prohibited from imposing such restrictive covenants on their attorneys.  The justification for this exceptionalism is the premise that clients have the right to choose their counsel and any restrictions on a lawyer’s right to practice could impede that choice.  (Of course, why client choice is more imperative in an attorney/client relationship than other professional relationships of trust has always been a bit vague.)

• Noncompete Agreements ‎

In our last post, we analyzed the complaint that Jones Day ex-associates Julia Sheketoff and Marc Savignac filed against the firm. Sheketoff and Savignac, a married couple, allege that the firm discriminated against them and retaliated against Mark when he complained. They focus on the firm’s parental leave policy, under which new birth mothers receive 18 weeks of paid leave but new fathers receive 10 weeks. 

Battle has now been joined in the lawsuit. Jones Day moved to dismiss, and the motion is now fully briefed with an opposition, reply, and even a proposed surreply.

• Discrimination
• Civil Litigation
• Wrongful Termination