Employment Law Roundup: You Should Know (These Aug Updates)

For your reference, here’s a Friday reading list of commentary, guidance, and updates published this first week of August 2011, by Employment lawyers and law firms on JD Supra:

Regulatory and Judicial Rulings

Interfering with Employee Speech (Fox Rothschild):

“Employers beware: The National Labor Relations Board is scrutinizing company social-media policies — and their rulings apply to all companies, whether or not they are unionized. If Facebook postings or tweets involve working conditions or wages, employees are free to comment.” Read more»

NLRB Proposes Revised Election Rules: Fox Rothschild Testifies Before NLRB and Will Submit Comments (Fox Rothschild):

“On June 21, the National Labor Relations Board (NLRB), the federal agency governing private sector labor relations, proposed revisions to its regulations on representation elections that it conducts, in which employees vote by a secret ballot to determine whether they wish to be represented by a union. … According to the NLRB, the revisions are intended to reduce unnecessary litigation. on July 18, I was one of 59 labor relations professionals to testify before the NLRB at its public hearing. I testified in opposition to the revisions, noting that, from the employer’s perspective—which this alert is also based upon—the revisions, if adopted as is, would increase litigation, not reduce it.” Read more»

Be Careful Not To Overreach in Your Confidentiality Agreements And Policies(Hopkins & Carley):

“A recent federal appellate decision serves as a cautionary tale against overbroad confidentiality agreements or policies. In NLRB v. Northeastern Land Services, the employer was in the business of placing temporary employees with companies and, as a part of that business process, required placed employees to sign an employment contract that provided, in part….” Read more»

NLRB Signals Retreat on Cases Involving Employee Comments in Social Media (Franczek Radelet P.C.):

“In three recent cases, the National Labor Relations Board (NLRB) has indicated that employee comments about their employment on social media web sites like Facebook may not be protected under federal labor law. These cases signal a retreat from the NLRB’s trend in late 2010 and early 2011 to issue complaints involving employer discipline of employees who posted complaints about their employment online.” Read more»

6th Circuit Permits Claims Against Union To Proceed Under Computer Fraud Abuse Act for Organizing Protest Against Employer (Kevin O’Connor):

“In an novel interpretation of the federal Computer Fraud and Abuse Act (CFAA), the Sixth Circuit Court of Appeals in Pulte Homes, Inc. v. Laborers’ International Union of N.A., 2011 U.S. App. Lexis 15828 (6th Cir. Aug. 2, 2011) ruled that a construction firm stated valid claims under the CFAA against a laborers’ union for actively encouraging its supporters to bombard the construction firm’s email and phone systems with messages opposing the employer’s position on labor issues.”Read more»

FASB Nixes Unfunded Liability Reporting Requirement (Fox Rothschild):

“Good news for employers in union defined benefit plans! The Financial Accounting Standards Board (FASB) had proposed a rule that would require companies to report to disclose potential withdrawal liability for multiemployer defined benefit pension in which they participated which would have put the pension fund’s unfunded liability on the employers’ books. However, on July 27, FASB notified Congress that it has withdrawn this proposal.” Read more»

HIPAA Enforcement Against UCLA and New Rule Proposal Bring Scrutiny to Workforce Access to Health Information (Poyner Spruill LLP):

“On May 31, 2011, the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) issued a notice of proposed rulemaking (NPRM) that would provide individuals with a new right under HIPAA. The NPRM would allow individuals to request an “access report” from HIPAA covered entities that must reflect virtually every instance of access to their electronic protected health information (ePHI), including all access by individual employees.” Read more»

EEOC’s $20 Million Settlement with Verizon Puts Focus on “No Fault” Attendance and Leave Policies (Poyner Spruill LLP):

“In a press release last month, the Equal Employment Opportunity Commission (EEOC) announced that Verizon Communications will pay $20 million and take other remedial measures to settle a class action disability discrimination lawsuit that the EEOC filed against the company. The consent decree between Verizon and the EEOC for settlement of the lawsuit, which is pending judicial approval, is the largest disability discrimination settlement in a single lawsuit in EEOC history.” Read more»

US Supreme Court On Railroad’s Liability for Injury (Howard Ankin):

“To what extent is a railroad carrier liable under the Federal Employers’ Liability Act (FELA) to an employee injured while at work? The Supreme Court of the United States considered this very issue in a recent case that arose in Illinois, CSX Transportation Inc. v. McBride, No. 10-235.” Read more»

Eleventh Circuit Issues Important New Decision on Attorneys’ Fees in FLSA Lawsuits (Ford & Harrison LLP):

“According to a new decision by the U.S. Court of Appeals for the Eleventh Circuit, employers can avoid paying attorneys’ fees in FLSA cases by, before judgment, paying the plaintiff(s) all wages claimed, plus an equal amount as liquidated damages. Dionne v. Floormasters Enters., 2011 U.S. App. Lexis 15560 (11th Cir. July 28, 2011).” Read more»

Employer of Foreign Worker Tagged with $156,000 Judgment (Ronald Shapiro:

“Employers frequently hire foreign workers in specialty occupations (such as architects, engineers, doctors and computer programmers) pursuant to the H-1B visa program, but sometimes they are not able to follow through on a commitment made to such a worker when economic circumstances change. … Now, a June 30 ruling by an administrative law appellate judge for the Department of Labor demonstrates that it is both risky and costly to change those commitments without following the procedures set forth by law and regulation.” Read more»

State and Local Matters

TRO Issued Enjoining Breach Of Non-Compete Agreement Clauses (Allen Matkins Leck Gamble Mallory & Natsis LLP)

“Thus, it was interesting to see that U.S. District Court Judge Lucy H. Koh recently issued a temporary restraining order enjoining breach of certain provisions of a non-compete agreement. In Richmond Technologies, Inc. v. Aumtech Busines Solutions, 2011 U.S. Dist. LEXIS 71269 (July 1, 2011), Judge Koh found that the non-solicitation and non-interference provisions of a non-disclosure agreement were likely to be found unenforceable under California law.” Read more»

State Court Finds No Duty to Spouse of Exposed Worker (Dechert LLP):

“Delaware’s supreme court held last month that an employer owes no duty of care to an employee’s spouse, who allegedly contracted asbestos-related disease from exposure to her spouse’s work clothes. Price v. E.I. du Pont de Nemours & Co., No. 719, 2009 (Del. 7/11/11).” Read more»

California Non-Competes: Are They Legal After All? (Fisher & Phillips LLP):

“In an eye opening decision, the United States District Court for the Northern District of California recently granted a temporary restraining order partially enforcing a non-compete agreement. In Richmond Technologies v. Aumtech Business Solutions (copy available below), the Plaintiff provides software for financial services firms.” Read more»

California v. Safeway: Antitrust Risks of Employer Mutual Aid Assistance Agreements (Morgan Lewis):

“On July 12, in California v. Safeway,1 the Ninth Circuit Court of Appeals, sitting en banc, held that a mutual strike assistance agreement among four supermarket chains was subject to challenge under the “rule of reason” standard. The court held that a revenue-sharing provision of the agreement at issue was not protected by the nonstatutory labor exemption to the antitrust laws, but overturned a prior decision that had summarily condemned the agreement under the so called “quick look” standard.” Read more»

Connecticut Passes Law Narrowing Scope Of Background Checks (Siegel, O’Connor, O’Donnell & Beck, P.C.):

“The Connecticut Legislature recently passed a law (Public Act No. 11-223) prohibiting employers from requiring an employee or prospective employee to consent to a request for a credit report that contains information about the employee or prospective employee’s credit score, credit account balances, payment history, savings or checking account balances or savings or checking account numbers as a condition of employment.” Read more»

Illinois Court Rules That Ex-Employees Can Proceed With Retaliatory Discharge Claims (Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck):

“On July 21, 2011, the Illinois Appellate Court held that ex-employees of a seed company who reported to a former employee that seed bags weighed less than marked on the label are entitled to a trial on their retaliatory discharge claims. Although there are advantages to disclosing information directly to a government or law enforcement agency,1 the Court held that this is not required to establish a retaliatory discharge.” Read more»

Philadelphia’s Recently-Amended Fair Employment Practices Ordinance Is a Good Reminder to Employers: Be Aware of Local Ordinances (McNees Wallace & Nurick LLC):

“Does your Company make a practice of checking for local ordinances that prohibit discrimination in employment? It should! Employers may be most familiar with the primary state and federal anti-discrimination laws, such as the Title VII of the Civil Rights Act of 1964, the new Genetic Information and Nondiscrimination Act and the Pennsylvania Human Relations Act. … Employers must be careful, however, to ensure that they are aware of local ordinances that provide additional prohibitions on discrimination – including ordinances like Philadelphia’s Fair Practices Ordinance, which prohibits discrimination based upon additional protected characteristics.”Read more»

Additional Commentary

How to protect your business from workplace retaliation claims (International Lawyers Network):

“Workplace retaliation claims are an ever-increasing litigation concern for employers. In 2010 there were more charges of retaliation filed with the U.S. Equal Employment Opportunity Commission (EEOC) than any other type of charge.” Read more»

Guidelines for wellness programs (McAfee & Taft):

“…Such wellness programs have risen in popularity over the past few years as employers have discovered that healthier employees are often more productive employees. Recent empirical studies agree, showing that the return on investment on corporate employee wellness programs can be as high as $3 for every $1 spent. … With so many potential benefits for both employers and employees, are there any potential legal pitfalls when an employer offers incentives (including monetary rewards) to its employees for participating in a wellness program?” Read more»

Overtime Blues (Fisher & Phillips LLP)

“Your handbook says, ‘No unauthorized overtime permitted.’ … But what if your employees understood (or claim they understood) the message to be: ‘to keep your job you must get your work done and if you have to work overtime to get it done, so be it. Just know that we don’t want to pay for the overtime so I don’t want you recording those hours. If you do I’ll see you as being an inefficient slacker and I will “correct” the time records to eliminate your overtime hours.’ This is not the message you intended to communicate.” Read more»

Employee Free Choice Act Becoming Law (Dinsmore & Shohl LLP):

“Those who believed the card check bill was gone are now realizing that was naive. Where the current administration has failed to persuade Congress to adopt its legislative agenda, time and again, it has waived its regulatory wand and enacted the failed “legislation” as “regulation.” Magically, it becomes the law of the land.”Read more»

Problem Employees? Here’s A Solution (Fisher & Phillips LLP):

“Issuing employee discipline is one of the hardest aspects of being a supervisor and, since it’s so difficult, it’s often not done well – when it is done at all. Discipline delayed or mishandled is one of the primary causes of federal and state-agency discrimination charges as well as claims of wrongful discharge, all of which create a distraction from the business and an unplanned expenditure of resources to defend against claims.” Read more»

Child Porn Found In the Workplace: Affirmative Duty to Report (Sands Anderson PC):

“…A hazard of our ever-present connection to the internet is the flood of information to our computers, not all of which we’ve invited or requested. Malware, mis-directed internet searches, and unauthorized users of computer equipment can put all computer users in the position of receiving, even unintentionally, offensive, obscene, even illegal material. Then there are always those who reach out purposefully to view such materials with intent. … Two major questions facing business are (1) when can you legally search an employee’s computer? and (2) what do you do when you find child porn on the employee’s computer?” Read more»

Tapping U.S. Employees To Work In An Untapped Canadian Market (Fisher & Phillips LLP):

“Your company just signed a lucrative contract to start a project in Canada next week. Your company, however, does not have operations in Canada. Moreover, the only employees qualified to perform the work are U.S. citizen employees currently working in the U.S. What do you do?” Read more»

She Said WHAT About Me? (Fisher & Phillips LLP):

“One of your sales managers steps into your office and closes the door. ‘Boss, you’re not going to believe what Mary, that new sales person, has said about you on her Facebook page.’ … Your first reaction is that she needs to go and she needs to go today. After all, you are in an ‘employment-at-will’ state, so you can terminate an employee for “good reason, bad reason or no reason at all.” Insulting your boss in front of the world is certainly a good reason. Besides you have read or heard lots of stories about employees being fired for dumb things they have said on Facebook.” Read more»

Is a Reinstated Employee Short on “Hours Worked” Eligible for FMLA Leave?(Franczek Radelet P.C.):

“We terminated an employee who has been reinstated by an arbitrator with full back pay. Now, he has requested FMLA leave. Are we obligated to provide leave even though he has not worked 1,250 hours in the previous 12 months?” Read more»


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