The Trusted Advisor and Avoiding Unintended Fireworks

INTERVIEW ON THE PRICE OF BUSINESS SHOW, MEDIA PARTNER OF THIS SITE.

Recently Kevin Price, Host of the nationally syndicated Price of Business Show, interviewed Daniel A. Cotter, Attorney, and Counselor.

The Daniel Cotter Commentaries

July is a time of reflection for our nation, with the Fourth of July a time to celebrate our independence.  It is a good time for businesses to reflect on independence from unintended fireworks.

This past June, the Supreme Court of the United States decided the affirmative action cases, holding that race-based admissions decisions were unconstitutional and that Harvard University’s and the University of North Carolina’s admissions processes violated the Equal Protection Clause of the Fourteenth Amendment.

Recently, Senator Tom Cotton sent letters to more than fifty law firms, warning them that:

Though that case focused on colleges, the same principles and indeed the plain text of federal law also cover private employers. Title VI of the Civil Rights Act already prohibits federal fund recipients from discriminating based on race. Title VII likewise prohibits private employers from basing hiring decisions on race, prompting a U.S. Equal Employment Opportunity Commissioner to recently warn that “diversity programs pose both legal and practical risks for companies.”

Federal law has long prohibited treating employees differently because of their race. Employers should take to heart the Supreme Court’s recent declaration that “eliminating racial discrimination means eliminating all of it.” Congress will increasingly use its oversight powers—and private individuals and organizations will increasingly use the courts—to scrutinize the proliferation of race-based employment practices. To the extent that your firm continues to advise clients regarding DEI programs or operate one of your own, both you and those clients should take care to preserve relevant documents in anticipation of investigations and litigation.

It remains to be seen what, if any, power, the Senate and/or Congress have to further enforce Cotton’s warning.

But in the days and months ahead, expect continued discussions and debates on DEI and ESG issues.

In another area of employment, the gig economy and treatment of certain workers, the California Supreme Court unanimously held that Uber Technologies Inc must face a California lawsuit claiming it should have covered UberEats drivers’ work-related expenses.

California has a private attorney general act, or PAGA, which allows for workers to bring a class action against employers. In 2022, the United States Supreme Court held that in some instances, PAGA was preempted by the Federal Arbitration Act.  In the recent CA decision, the CA Supreme Court held that UberEats driver Erik Adolph did not give up his right under state law to sue on behalf of a large group of workers even though he signed an agreement to bring his own work-related legal claims in private arbitration.  He was aggrieved and so could still represent others.

The landscape for businesses continues to be one filled with obstacles and hazards.  Having a trusted legal advisor will help you to navigate and avoid non-celebratory fireworks.

This is “Your Attorney as a Trusted Advisor with Daniel Cotter.”  I am Daniel Cotter, Attorney and Counselor at Howard & Howard Attorneys, PLLC, and your trusted advisor.  Please visit howardandhoward.com for more information.

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