by Steven M. Swirsky and Michael F. McGahan
On January 25, 2012, the National Labor Relations Board's ("NLRB") Acting General Counsel ("AGC") Lafe Solomon issued a second report on unfair labor practice cases involving social media issues. We discussed his earlier report in our Act Now Advisory of October 4, 2011.
The new report covers an additional 14 cases, all of which fall into the same two categories as the cases discussed in the earlier report, namely: (1) termination of employees resulting from statements made in social media forums about their working conditions or their ...
We are pleased to announce that Epstein Becker Green’s first app - Wage & Hour Guide for Employers - is now available for download in the App Store on iTunes, for both iPhones and iPads. You can find this complimentary app by searching for “Wage Hour” or clicking here.
The Wage & Hour Guide app enables employers to access up-to-date federal wage and hour guidelines as well as various state guidelines, which can differ by jurisdiction. In addition, users can obtain insights and commentary about the latest wage and hour developments and issues by accessing this blog directly ...
by David D. Green, Frank C. Morris, Jr., Allen B. Roberts
Two recent decisions on arbitration, one from the National Labor Relations Board ("NLRB" or "Board") and one from the Supreme Court of the United States, present an interesting question: Can employers limit employees from launching potentially costly class actions? Some employers have applicants or new employees sign a separate agreement, or include a clause in application forms or in the employee handbook (which employees acknowledge), requiring employees to bring future disputes to arbitration and to agree that the ...
by Allen B. Roberts, Amy J. Traub, and Christina J. Fletcher
Religious organizations and those they employ have anticipated guidance from the U.S. Supreme Court's first opinion addressing the ministerial exception in the employment discrimination context. With its January 11, 2012, decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, U.S., No. 10-553, the Court clarified that the First Amendment's Establishment and Free Exercise Clauses bar the government from interfering with the "decision of a religious group to fire one of its ministers." The Court ...
The Employer Defense Law Blog welcomes a new sibling! The Health Employment and Labor (HEAL) blog will include updates about timely issues related to labor and employment issues that affect health care and life sciences companies.
The HEAL blog is an idea that stems from the Epstein Becker Green’s Health Employment and Labor Group, which combines the strengths of the Firm’s two founding national practices – Health Care and Life Sciences and Labor and Employment. EBG attorneys have a deep knowledge of both the labor and employment field and wanted to create a blog that would ...
by Donald S. Krueger & D. Martin Stanberry
New York state courts appear primed to resolve important questions about competitive bidding for public contracts in New York City and the ability of contractors to successfully challenge city officials’ actions that directly affect the wage and benefit components of their bids.
Under New York law, a contractor awarded a public contract by the state or a municipality must pay the “prevailing rate” for wages and fringe benefits to their workers performing services under that contract. These prevailing rates are established by the ...
On Monday, January 9, 2012, Governor Chris Christie signed into the law the New Jersey Trade Secrets Act (NJTSA), the Garden State’s version of the Uniform Trade Secrets Act (UTSA). New Jersey, thus, becomes the forty-seventh state to adopt some form of UTSA. While the New Jersey Act will promote some level of uniformity in the approach to trade secrets issues, New Jersey specific changes to the uniform act promise that this statute will build upon, rather than depart from, New Jersey’s common law tradition of protection of trade secrets and other valuable business ...
It seems likely that the struggling economy will continue to be a primary driver of labor and employment law issues in 2012, particularly in the financial services industry. While there are many important legal issues that will arise in this environment, employers in the financial sector should consider five issues as potential hot button topics for the coming year:
- Continuing, but targeted, reductions-in-force
- Independent contractor misclassification
- Overtime exemption misclassification
- Revolving door restrictions on hiring government employees
by Peter M. Panken, Michael S. Kun, Douglas Weiner, and Larissa Lalor-Rosado
Misclassification of employees as exempt from overtime compensation has become a cottage industry for plaintiff’s lawyers and for the United States Department of Labor (“DOL”) in the Obama years. One of the most difficult issues is whether employees meet the so-called administrative exemption to the Wage Hour laws. In Hines v. State Room, the United States Circuit Court of Appeals for the First Circuit offered some clarity and help to beleaguered employers holding that former banquet sales ...
by Ian G. Nanos
The Equal Employment Opportunity Commission (“EEOC”) recently issued its Performance and Accountability Report for Fiscal Year 2011. As reported by the EEOC, 2011 was a record year. A quick review of these highlights, as well as the pending docket, reveals a growing trend and employers should pay attention.
First the highlights. During FY 2011, the EEOC received a record number of discrimination charges – nearly 100,000 against private sector employers alone. More importantly, the EEOC also recovered a record $364 Million through administrative ...
On December 1, 2011, the Superior Court of New Jersey, Appellate Division, affirmed dismissal of a whistle-blowing and defamation lawsuit based in part on application of the New Jersey Health Care Professional Responsibility and Reporting Enhancement Act. In Senisch v. Carlino, A-6218-09T3 (N.J. App. Div. Dec. 1, 2011), the court held that a health care entity which had reported negative, but truthful, information to another health care entity about a former health care professional’s termination of employment could not be liable for doing so.
In this case, the ...
by Dena L. Narbaitz and Marisa S. Ratinoff
While everyone awaits the California Supreme Court's ruling in Brinker Restaurant Corp. v. Superior Court (Hohnbaum) – which is expected sometime in early 2012 and will determine the scope of an employer's meal and rest period obligations – employers must not lose sight of other important developments in California employment law. Below are brief summaries of some of the legislative enactments in California that will affect employers. Unless otherwise noted, these laws will take effect on January 1, 2012.
by Jennifer A. Goldman and Peter M. Panken
Since the Wage Theft Prevention Act (“WTPA”) became effective April 9, 2011, New York employers have faced harsher penalties for failing to pay employees minimum wages and overtime. As reported in two previous Act Now Advisory’s, (December 15, 2010, and April 4, 2011) the WTPA, which amended New York’s Labor Law, significantly increased employers’ penalties for unpaid wage and hour violations, among other things.
Prior to the effective date of the WTPA, liquidated damages were capped at 25 percent of the unpaid wages due. Under ...
The Equal Employment Opportunity Commission (“EEOC”) has increased its efforts to encourage large corporations to enter into Nationwide Universal Agreements to Mediate (UAM). To date, more than 200 private-sector employers, including several Fortune 500 companies, have entered into UAM agreements with the EEOC at the national level. Additionally, EEOC district offices have entered into 1,743 mediation agreements with employers at the local level.
The EEOC’s focus on UAMs, which apply to individual-charges of discrimination, but not to class ...
On September 28, 2011, a National Labor Relations Board (“NLRB”) administrative law judge (ALJ) found that Knauz BMW lawfully terminated the employment of Robert Becker, a salesperson, after he posted pictures and comments on his Facebook page about two different workplace incidents -- an automobile accident and a dealership sales event. The judge also found that several Employee Handbook policies, unrelated to social media postings, contained overly broad language. Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (Sept. 28 ...
by Steven M. Swirsky and Michael F. McGahan
On Thursday, August 18, 2011, the Acting General Counsel of the National Labor Relations Board ("NLRB" or "Board") issued a report on the outcome of 14 cases involving employees' use of social media or social media policies in general. This report follows a more expansive "Survey of Social Media Issues Before the NLRB" issued by the U.S. Chamber of Commerce on August 5, 2011, which addresses 129 cases involving social media reviewed by the NLRB at some level. Further, after these reports were published, an NLRB administrative law judge ("ALJ ...
By: Jill Barbarino
When defending a litigation filed by a current or former employee, it is now routine practice for the employer’s counsel to review the employee’s workplace e-mails and computer for information relevant to the employee’s claims or the employer’s defenses. This, of course, is consistent with the principle that the employer’s e-mail and computer systems are the property of the employer and employees have no expectation of privacy with respect to electronic communications sent or received via their employer’s systems. If, however, an employee has ...
By: James S. Frank and D. Martin Stanberry (Admission Pending)
On August 23, 2011, the National Labor Relations Board (“Board”) ruled that a hospital whose nurses are represented by a union does not have the authority to unilaterally implement an employee flu vaccination program because, in the Board’s view, ensuring patient safety is not a core purpose of the enterprise. Virginia Mason Hospital, 357 N.L.R.B. No. 53 (August 23, 2011). Specifically, the Board rejected the employer’s reliance on what is known as the “Peerless defense,” and held that the National Labor ...
The following does not depict an actual interview. Rather, it is a fictitious illustration (at least for now).
Interviewer: So tell me why you’re interviewing for the position we’ve advertised.
Interviewee: That’s an easy one. Because I’m unemployed and I need a job.
Interviewer: What happened with your last job?
Interviewee: I wasn’t very good, and they needed to reduce headcount, and I was an easy place to start.
Interviewer: There appears to be gaps on your resume between all six of the jobs you’ve had. Six months here, two years there. What ...
by Susan Gross Sholinsky, Dean L. Silverberg, Steven M. Swirsky, and Jennifer A. Goldman
New York City employers take note: under the New York City Human Rights Law (“NYCHRL”), it is now considerably more difficult for employers to establish “undue hardship” in the context of denying an employee’s request for a reasonable accommodation due to his or her religious observance or practice. While previously silent on the issue, the NYCHRL now includes a definition of the term “undue hardship,” as follows: “an accommodation requiring significant expense or ...
By: James P. Flynn
The New Jersey Supreme Court issued a lengthy, sweeping decision on August 24th on the standards for evaluating eyewitness testimony in criminal cases that is garnering national, and even international, attention. See NY Times report by clicking here; Wall Street Journal report by clicking here; Reuters report by clicking here. Though the case entitled State v. Larry Henderson and its companion case entitled State v. Cecilia, both available here, involved eyewitness identification testimony, the Supreme Court dealt at great length with more general issues ...
A recent settlement with the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) has once again made clear that, if an employer is a federal government supply and service contractor or subcontractor subject to the affirmative action/non-discrimination obligations imposed by Executive Order 11246, including the obligation to develop and maintain a written affirmative action program, it is imperative that the employer properly track its applicants and hires.
Such tracking should include documenting the gender and ...
As you may know, the authors of this blog are attorneys at Epstein Becker Green, a national law firm with approximately 300 lawyers practicing in ten offices throughout the U.S.
On July 19, 2011, Epstein Becker Green’s Jay P. Krupin testified before the National Labor Relations Board (NLRB) concerning the Board’s dramatic rulemaking proposals to modify the representation election process. The firm was one of only a handful of management-side firms invited to provide testimony on behalf of clients at this first-ever NLRB hearing.
Vigorously arguing against the proposed ...
By: John F. Fullerton III and Douglas Weiner
The current prevalence of lawsuits for unpaid overtime compensation under the Fair Labor Standards Act (“FLSA”) by employees who claim they were misclassified by their current or former employer as “exempt” from overtime has been well-documented. These lawsuits continue to present challenges to employers, not just in terms of the burdens and costs of defending the cases, but in the uncertainty of the potential financial exposure. As our colleagues have previously reported (here and here), there are two methods in which the ...
As you may know, the authors of this blog are attorneys at Epstein Becker & Green, a national law firm with approximately 300 lawyers practicing in ten offices throughout the U.S.
Recently, Chambers USA released its 2011 edition, citing 23 of our attorneys as “Leaders in Their Field” and ranking our Healthcare practice in its “Nationwide Healthcare” category and as No. 1 in New York and the District of Columbia.
Noting the complementary strengths of our health and employment practices, the editors also stated that "The [EpsteinBeckerGreen] team adeptly undertakes an array ...
The placement of a large, inflatable rat balloon at an employer’s facility, a sight familiar to many urban dwellers, was upheld in a recent 3-1 decision by the National Labor Relations Board, which found that a union that had stationed the rat near a hospital in Florida to protest work being performed by a non-union construction contractor at the facility did not violate the federal law against secondary boycotts in labor disputes. Sheet Metal Workers International Association, Local 15 (Galencare, Inc. d/b/a Brandon Regional Medical Center), 356 N.L.R.B. No. 162 (2011). (PDF) ...
by Teiko Shigezumi and Carrie Corcoran
The EEOC recently published its long-awaited final regulations (the “Regulations”) and interpretive guidance for the Americans with Disabilities Act Amendments Act (the “ADAAA”), which became effective on January 1, 2009. The Regulations significantly alter the analysis of “disability” under the Americans with Disabilities Act (“the “ADA”) and reflect Congress’ intention to expand the ADA’s coverage. The ADAAA retained the ADA’s definition of “disability” as a physical or mental impairment that ...
The EEOC has reported that it receives more charges of retaliation than any other type of employment discrimination charge, and that there are thousands of cases involving allegations of illegal retaliation filed every year. Retaliation is often prohibited by statute, but the Supreme Court has expanded the scope of actionable retaliation lately, holding that there was a cause of action for retaliation even though the statute in question did not expressly cover the situation at issue.
The Fair Labor Standards Act (FLSA) prohibits discrimination against an employee “because ...
At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.
One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area. The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the ...
This blog is dedicated to a discussion of many of the different areas of employment law confronted by employers in today’s workplace – and the changes regularly occurring there.
Perhaps more than ever before, change happens rapidly in the workplace. In part, change has occurred because of changes in technology. Not long ago, the notion of drafting a social media policy to govern employees’ postings on the Internet was unimaginable. Now, employers grapple with such policies and their consequences.
Change also comes to the workplace because of changes in administrations. ...
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