Jordan A. Fishman
Jordan A. Fishman
Senior Associate, Atlanta
Formerly: Hostess, Server
  • B.S., Corporate Communications, University of Texas at Austin;
  • J.D., University of Georgia School of Law.

While I intended for the practice of law to be only a temporary detour from my path to become a politician – that detour has instead become my passion. And that’s one less politician for the world! I’m pleased to admit that I have acquired a true enthusiasm for the practice of employment law, especially within the hospitality industry. What could be more gratifying than helping a new hotel open its doors, or counseling a restaurant with best practices to elevate the employee-employer relationship and avoid lawsuits? To the conventional belief that the practice of law is nerdy or boring… “I object!”

At Stokes Wagner, we take pride in our “preventive law” approach – helping you avoid costly and distracting issues before they may arise. I have fully embraced this concept. By counseling my clients on a daily basis, I seek to build a communicative relationship whereby my familiarity with the client enables me to spot issues before they become problems. And should litigation be unavoidable, I step up to the plate as a dedicated and informed advocate for my clients.

As a mid-level associate, I have gained an impressive range of experience. I have already deposed celebrities, conducted confidential workplace investigations, completed on-site audits of iconic hospitality institutions, trained an army of managers, argued countless motions (several for Grammy-winning rappers), served as lead counsel in arbitration, mediated numerous cases, and served as lead counsel in a jury trial. I have also drafted a mountain of vendor contracts, handbooks, tip pool agreements, employment agreements, employee policies, S.O.P.’s, releases, leave notices and other hospitality-related documents. And while each client’s needs may present new challenges, I am undaunted. As Benjamin Franklin stated, “energy and persistence conquer all things.”

When not throwing myself into the legal deep-end, I am a noted restaurant hound, amateur chef and new dog-mom. But above all else, I am a problem-solver that seeks to lead by showing-up prepared and ready to take on a challenge.

A recent federal court decision reminds employers that an employee’s electronic acceptance of an arbitration agreement may not, by itself, be enough to prove that the employee has agreed to arbitrate. In Shockley v. PrimeLending, the U.S. Court of Appeals for the Eighth Circuit recently affirmed the lower court’s decision to deny the employer’s motion to compel arbitration where the arbitration agreement was signed via the employer’s automated intranet system.

In order to force an employee to take their dispute to arbitration, there must be an agreement or a contract to arbitrate. The Court focused on whether the employer’s automated intranet system was sufficient proof that she accepted the terms of the arbitration agreement. Ultimately, acceptance via intranet system was insufficient for the following reasons:

• It was unclear that when the employee passively clicked “accept,” she acknowledged and accepted the terms of the arbitration agreement, as opposed to simply acknowledging that she saw the link containing the handbook and arbitration agreement;

• There was no evidence that the employee clicked on the link to review the text of the handbook, so that she may have never seen the arbitration provision;

• If she never saw the arbitration agreement, there was no way she could agree to its terms, which was, as the court stated, a “fatal flaw”;

• The agreement’s delegation clause (delegating the issue of enforceability to the arbitration panel) could not be enforced without proof that the employee agreed to submit the issue of arbitrability to the arbitrator rather than a court.

This decision serves as a reminder that a stand-alone arbitration agreement, rather than a provision within a handbook, is more likely to be upheld. In addition, if your organization on-boards new employees electronically, this decision highlights the importance of ensuring that employees are required to review the terms in your arbitration agreement prior to accepting these terms. As the Eighth Circuit stated, there must be a “positive and unambiguous” acceptance by the employee for a court to hold that an arbitration provision is a valid, enforceable contract.

For a printable PDF of this article, click here.

In January 2020, Nevada will become the first state to bar employers from refusing to hire a prospective employee due to a positive drug test for cannabis. The new law carves out some exceptions for employees who operate a motor vehicle or whose cannabis use could adversely impact the safety of others but protects all other job applicants.

Similarly, the New York City Council passed a bill in April that bars employers from requiring job applicants to pass a drug test for cannabis as a condition of employment.

Likewise, while only addressing federal employees, there is pending legislation in Congress that would bar drug-test discrimination by federal agencies in states that have legalized cannabis. The Fairness in Federal Drug Testing Under State Laws Act (HR 1687) seeks to explicitly bar federal agencies from discriminating against workers solely because of their status as a cannabis consumer or due to testing positive for marijuana use on a workplace drug test.

As more states legalize the use of cannabis, there is a growing trend towards preventing discrimination against applicants and workers for the off-duty use of marijuana.

For a printable PDF of this article, click here.

On March 4, 2019, the U.S. District for the District of Columbia issued an opinion reinstating the EEOC’s collection of pay data as part of the EEO-1 Report filing. The revised EEO-1 form was an Obama-era change that would have required employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands. The pay data collection requirement was originally slated to go into effect on March 31, 2018 but was stalled after the Office of Management and Budget (“OMB”) stayed the implementation of the pay data collection portions of the revised EEO-1 Report.

That decision prompted a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC. In its decision, the Court concluded that OMB’s action staying the EEOC’s pay data collection tool was an “illegal” arbitrary and capricious decision that lacked a “reasoned explanation.” As a result, the Court vacated the stay and ordered that the previously approved revised EEO-1 Report that required the collection of pay data form shall be in effect. Accordingly, on April 3, 2019, the Equal Employment Opportunity Commission (EEOC) announced that employers will have until September 30, 2019, to submit employee pay data as part of their annual 2018 EEO-1 report. On May 3, 2019, a Notice of Appeal was filed in the current litigation dictating this deadline, which could potentially impact the reporting deadline. However, the EEOC has posted a notice on its website taking the position that this Notice of Appeal does not impact the new reporting deadline and that employers should begin complying with the reporting obligations for this year until given further notice.

Specifically, the EEOC’s posting states:

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July 2019, and will notify filers of the precise date the survey will open as soon as it is available.

While it is not certain that employers will be required to submit pay data on September 30, 2019, the pending litigation does not affect an employer’s current obligation to submit Component 1 data from 2018 by May 31, 2019.

It is our recommendation that employers begin compiling pay data well in advance of the September 30, 2019, deadline because the new EEO-1 requirements require more detailed pay information. For example, the updated EEO-1 form requires employers to report wage information from Box 1 of the W-2 form and total hours worked for all employees by race, ethnicity, and sex within 12 proposed pay bands. For more information on complying with the new requirements, contact your Stokes Wagner attorneys.

For a printable PDF of this article, click here.

The Forced Arbitration Injustice Repeal Act (“FAIR” Act) was introduced in both houses on February 28, 2019. If passed, the FAIR Act would eliminate mandatory arbitration agreements in employment, consumer, antitrust and civil rights claims. The bill would not completely do away with arbitration. Employees and consumers could agree to arbitration after a dispute occurs. The FAIR Act would also prohibit agreements that stop individuals, employees and businesses from joining or filing class actions.

Proponents of the FAIR Act argue that the arbitration process is biased in favor of big business and against individuals. Supporters also argue that forcing claims to arbitration sweeps wrongdoing accusations under the rug. Opponents of the FAIR Act argue that arbitration is fair, faster, and cheaper than litigation. Additionally, not all arbitration agreements include a confidentiality clause, thus defeating the argument that arbitration is used to keep wrongdoing out of the public eye.

Many are skeptical that this bill will pass, but even without the passage many companies are moving away from mandatory arbitration agreements to avoid the perception of unfairness. For example, after various allegations of sexual harassment at Google became public in the wake of the #MeToo movement, it recently announced that it was ending its mandatory arbitration program.

All arbitration agreements are not created equal. There are ways to draft arbitration agreements in a fair and balanced way such that it does not compete with you being an “employer of choice.” If you have any questions as to how to balance these concerns, please contact us.

For a printable PDF of this article, click here.

New York City recently signed the “Stop Sexual Harassment in NYC Act” into law. The Act amends the New York City Human Rights Law (“NYCHRL”) and the New York City Charter, providing several noteworthy changes aimed at preventing sexual harassment in the workplace.

Effective immediately, all employers, regardless of size, will be subject to the NYCHRL prohibition on gender-based harassment. Sexual harassment is considered a form of discrimination under the NYCHRL, and the statute of limitations for filing a gender-based harassment claim with the New York City Commission on Human Rights (“NYCCHR”) is extended from one year to three years.

Posters: Effective September 6, 2018, all employers must prominently display the NYCCHR’s new anti-sexual harassment poster in a conspicuous place and distribute an information sheet on sexual harassment to new hires. The New York City Commission on Human Rights will design an anti-sexual harassment rights and responsibilities poster that will be distributed to employers. Stokes Wagner will notify you when the poster is available.

Trainings: Effective April 1, 2019, all private employers with 15 or more employees (including interns) must conduct an annual interactive anti-sexual harassment training for all employees (including interns as well as supervisory/managerial employees). The training must cover topics including definitions and examples of sexual harassment, education on bystander intervention, and explanations of how to bring complaints both internally and with the applicable federal, state and city administrative agencies. Employers must keep records of such trainings for at least three years.

Employers in New York City should prepare to alter their practices and policies accordingly. Contact Stokes Wagner for assistance in complying with the changes above.

For a printable PDF of this article, click here - and be sure to check out more updates in our Stokes Wagner Quarterly Legal Update!

Today, the Supreme Court issued a 5-4 decision holding that employers are not violating the National Labor Relations Act by requiring employees to sign class action waivers in arbitration agreements as a condition of their employment. Rejecting the NLRB’s position that class waivers violate a workers’ right to engage in concerted action, the majority held that mandatory arbitration agreements, which bar employees from joining together in a class-action lawsuit to settle disputes over wages and working conditions, must be enforced. In its opinion, the Court stated:

“As a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.”

This decision is a huge blow to plaintiffs’ class action lawyers, and a huge win for employers. Now, instead of employees banding together to combine small individual claims into class or collective actions, employees who sign arbitration agreements containing class waivers will be limited to pursue their claims in separate, out-of-court arbitration proceedings.

If you do not currently have an arbitration agreement that contains a class action waiver, we encourage you to edit your arbitration agreement accordingly. Contact Stokes Wagner with any questions. A PDF version of this update is available here.

California’s New Parent Leave Act (S.B. 63), which requires small business employers (20-49 employees) to provide employees with 12 weeks of unpaid, job-protected parental bonding leave went into effect on January 1, 2018.

Covered employers must now provide 12 weeks of unpaid, job-protected parental leave upon the request of eligible employees to bond with a new child within one year of the child’s birth, adoption or foster care placement. Employees may choose to use any type of accrued paid time off, such as paid vacation and sick leave, during the parental leave. As with other “leave laws,” employers may not retaliate and/or discriminate against an individual for taking parental leave and may not interfere with, restrain or deny an employee his or her right to leave under the act, and must provide a guarantee of employment in the same or a comparable position upon return to work.

What does this mean for you? This new law only applies to employers with 20-49 employees. If an employee is subject to both the California Family Rights Act (“CFRA”) and the Family Medical Leave Act (“FMLA”), the employee is not eligible for the New Parent Leave Act. CFRA and FMLA have the same eligibility requirements (hours worked and months of service) as the New Parent Leave Act, but require that the employee work at a worksite with 50 or more employees within 75 miles.

For more legal news, check out our quarterly newsletter for April 2018!

Starting January 1, 2018, nearly all private employees in New York State will be eligible for Paid Family Leave so the employee can (1) bond with a newly born, adopted or fostered child; (2) care for a family member with a serious health condition; or (3) assist loved ones when a family member is deployed abroad on active military duty. Paid Family Leave will phase in over four years, starting at 8 weeks in 2018 and increasing to 12 weeks by 2021.

  • January 1, 2018: 8 weeks paid at 50% of the employee’s average weekly wage or 50% of the state average weekly wage, whichever is less;

  • January 1, 2019: 10 weeks paid at 55% of the employee’s average weekly wage or 55% of the state average weekly wage, whichever is less;

  • January 1, 2020: 10 weeks paid at 60% of the employee’s average weekly wage or 60% of the state average weekly wage, whichever is less; and

  • January 1, 2021: 12 weeks paid at 67% of the employee’s average weekly wage or 67% of the state average weekly wage, whichever is less.

I. Who Is Eligible:

  • Employees who work a schedule of 20 or more hours per week are eligible after 26 weeks of employment.

  • Employees who work a schedule of less than 20 hours per week are eligible after 175 days worked.

  • Citizenship and immigration status do not impact eligibility.

II. What Employers Need to Do Now:

  • Contact your disability benefits insurance carrier to ensure you have Paid Family Leave Coverage.

  • Post the Notice of Compliance (provided by your insurance carrier) in a conspicuous place.

  • Update your employee handbook to inform your employees about Paid Family Leave.

  • Update your payroll processes to collect the employee payroll withholdings or contribution that pay for the insurance.

  • Inform non-eligible employees that they can choose to waive coverage.

Contact Stokes Wagner with any questions, and click here to download a PDF of this release.

On August 5, 2017, the New York City Commission on Human Rights published final regulations which expand on and clarify the already burdensome requirements of the Fair Chance Act (“FCA”). These newly released regulations will make background checks particularly difficult for national employers and/or employers with a consolidated hiring process in multiple states.

Through these final rules, the Commission (1) significantly expands on per se violations, clarifying what conduct will subject an employer to liability and/or fines regardless of whether an adverse action is taken; (2) creates a discretionary mechanism to resolve per se violations by sending employers an Early Resolution Notice; (3) confirms that non-convictions may not be considered in the hiring process; (4) provides guidance to employers who inadvertently discover information relating to an applicant’s criminal history; (5) adds steps to the post-conditional offer phase before an employer may complete the FCA review process and rescind a conditional offer of employment; and (6) imposes a rebuttable presumption that a rescinded conditional offer of employment is based on the applicant’s criminal history.

The above list is not intended to be exhaustive. Employers should contact Stokes Wagner regarding their current hiring practices to ensure compliance with these new regulations.

Visit the NYC Rules website for more information.

For more legal updates, check out our update for September 2017!