Breaking Legal News
2010
March
The Ninth Circuit Clears the Way for Tip-Pooling Arrangements
In a matter of first impression, the Ninth Circuit Court of Appeals held that employers that do not take a tip credit against the federal minimum wage may pool tips and allow all hourly employees, including employees who do not have in-person interaction with guests, to share in the "tip pool." In this down economy, the court's approval of greater flexibility in staff compensation should be a relief for hospitality and tourism employers.
In Hertz v. Friend, the U.S. Supreme Court Clarifies the Path to Federal Courts
By its unanimous decision in Hertz v. Friend, the U.S. Supreme Court has made it more likely that a company sued in state court in a state other than where its headquarters and center of direction, control, and coordination are located, will be able to remove the case from state to federal court.
February
California's Supreme Court Limits the Reach of State Kin Care Law
In a unanimous decision, the California Supreme Court holds that the state's "kin care" law does not apply to sick leave policies providing an indefinite number of paid sick days.
New York Labor Law Section 195.1 requires employers to obtain signed acknowledgements of receipt from newly hired New York employees that those employees have received written notice of their pay rate and pay day and if applicable, their overtime rate, before commencing work.
January
Fourth Circuit Rules that SOX Whistleblowers May Have Two Bites at the Apple
In a matter of first impression, the Fourth Circuit Court of Appeals held that Sarbanes-Oxley whistleblower claims initially filed with the Department of Labor can be subject to de novo review in federal district court if the Department of Labor does not issue a final decision within 180 days of the filing of the complaint. The practical impact of this ruling is the possibility that employers will be faced with defending SOX claims on two fronts.
E-Discovery: New California Rule of Court Requires Advance Meeting and Planning
California litigants are now required to meet and confer regarding the discovery of electronically stored information before the initial Case Management Conference.
2009
December
President Signs Bill Easing FMLA Eligibility Requirements for Airline Flight Crew
President Obama has signed the Airline Flight Crew Technical Corrections Act that is designed to close what was seen as a gap in coverage for airline pilots and flight attendants under the Family and Medical Leave Act (FMLA). The Act changes the way in which the hours of service requirement is met to make it easier for flight crews to qualify for leave under the FMLA.
In a trade secret misappropriation case, a California appellate court creates a new standard for highly technical cases regarding the pre-discovery disclosure of trade secret information.
November
The District of Columbia Court of Appeals has expanded the reach of the antidiscrimination provisions of the District of Columbia Human Rights Act (DCHRA). The court held that employees located outside of D.C. may bring claims for discrimination under the more protective provisions of the DCHRA so long as the discrimination decision was made in D.C.
The California Supreme Court finds valid a forfeiture provision in a restricted stock plan, even though the plan is funded from employees' wages.
October
A Tennessee Court of Appeals, in Cummings Inc. v. Dorgan, has held that an at-will employee who was threatened with termination if he did not sign a noncompetition agreement cannot claim the agreement was signed under duress or is otherwise unenforceable. Several other states have found duress in similar circumstances.
The Third Circuit Provides Guidance on Thorny FMLA and ADA Issues
The United States Court of Appeals for the Third Circuit's recent decision in Erdman v. Nationwide Insurance Co. provides much-needed guidance to employers on several Family and Medical Leave Act and Americans with Disabilities Act issues including: (1) how to analyze FMLA hours eligibility when the employee claims off-the-clock work; (2) what is considered a protected activity for purposes of an FMLA retaliation claim; and (3) how the ADA applies to employees who request leave to care for a disabled family member.
September
Seven years after the passage of the Sarbanes-Oxley Act, a decision by the U.S. Court of Appeals for the Ninth Circuit finally offers some guidance to employers regarding the elements of a Sarbanes-Oxley whistleblower claim.
Federal Contractors: Be Aware of New E-Verify Requirements in Contracts
With the rejection of an 11th-hour appeal, a Maryland district court judge has permitted the new E-verify requirements for federal contractors to become effective September 8, 2009. Federal agencies are now permitted to require federal contractors to use E-Verify to confirm the work eligibility status of their employees.
August
San Francisco Commuter Ordinance - Update on Enforcement and Enhanced Federal Commuter Benefits
In 2008, San Francisco enacted a commuter benefits ordinance requiring all nongovernmental employers with 20 or more employees, no matter where located, to provide their San Francisco employees with one of three options in subsidized commuting benefits effective January 19, 2009. San Francisco has since adopted an annual certification process requiring employers to notify the city of conformance or exemption from the ordinance through a questionable administrative process. In addition, as part of federal stimulus legislation passed in February 2009 tax-free benefits have been raised as of March, 2009, coincidentally San Francisco's minimum commuter subsidy option also increased from $45 to $55 per month as of July 1, 2009.
Arizona Joins the Growing List of States Enacting "Guns-At-Work" Laws
On July 13, 2009, Arizona became another state to enact a "Guns-at-Work" law after Governor Jan Brewer signed a bill that limits Arizona employers from enforcing any policies that prohibit employees from storing their lawfully owned firearms in their locked vehicles while parked in their employer's parking lot.
July
Companies Seeking Stimulus Funds Should Expect a More Aggressive OFCCP
The Office of Federal Contract Compliance Programs (OFCCP) has announced new aggressive procedures for auditing recipients of federal stimulus funds. Under the new procedures, any company receiving ARRA funds will face more rigorous audits and certain existing rules limiting the number and frequency of audits will no longer apply. In addition, construction projects, which have not been subject to significant audit activity for a number of years, are now going to be a primary focus of the agency's activities. Procurement personnel who are seeking ARRA funds will need to coordinate with HR in order to ensure that the company is prepared to comply fully with OFCCP's regulations before submitting its contract bid.
Ranting on the Internet about one's employer has become commonplace. When these rants appear on publicly accessible Internet pages, employers can access them, and, except in limited circumstances, can take adverse action based on the posting's contents. As a recent adverse jury verdict demonstrates, employers who access a restricted social networking site without proper authorization can face liability under federal and state laws intended to protect personal privacy. The risk will increase as employees use increasingly sophisticated privacy settings to limit access to their personal social networking pages.
In a case of potentially great significance to all employers with electronic communications policies, the New Jersey Appellate Division recently held in Stengart v. Loving Care Agency, Inc., that an employer was not entitled to read e-mails exchanged between an employee and her attorneys through her Yahoo! account, even though the emails were stored on the employee's company-issued laptop.
June
The Second Circuit holds that an employer who takes disciplinary action against an accused harasser without conducting an adequate investigation, based on the apparent belief that males have a propensity to engage in sexual harassment, may be guilty of unlawful "sex stereotyping" under Title VII.
Third Circuit Clarifies Definition of Management-Level Employee in Harassment Claims
The Third Circuit Court of Appeals narrows the scope of employer liability for co-worker harassment in hostile environment claims, holding that an employee with mere supervisory authority does not qualify as a management-level employee whose knowledge of harassment would be imputed to the employer.
Good Salary Negotiation Skills Do Not Justify Pay Disparities
According to the Eighth Circuit Court of Appeals in Drum v. Leeson Electric Corp., an employer cannot necessarily rely on a male applicant's negotiation skills to show that the difference between his wages and those of a comparable female employee were based on a factor other than sex and not in violation of the Equal Pay Act.
May
Federal Appellate Court Holdings Strike Down (and Uphold) Decisions by the Two-Member NLRB
Three recent federal appellate court decisions have created a circuit split of authority on whether the two current members of the National Labor Relations Board (NLRB) have the statutory authority to decide cases and issue final orders, with the U.S. Court of Appeals for the District of Columbia Circuit finding that the NLRB does not have such authority and the U.S. Courts of Appeals for the First and Seventh Circuits finding that the NLRB does have such authority. Despite the circuit split, the NLRB will most likely accept the D.C. Circuit's decision and reissue or adopt the decisions issued by the two-Member NLRB when a quorum is reestablished.
State Department Publishes New Exchange Visitor Skills List
The State Department has published a revised Exchange Visitor Skills List in the April 30 issue of the Federal Register. The Skills List serves as the basis for making some J-1 visa holders subject to a two year home country residence requirement. J-1 Exchange Visitors whose skills or fields of specialized knowledge appear on the Skills List will not be eligible to change to H or L temporary visa status or permanent residence until the two year foreign residence requirement is satisfied or waived. The new list takes effect on June 28.
April
Swine Flu: Preparing the Workplace for a Pandemic
The United States has declared a "health emergency" regarding an outbreak of swine influenza A (H1N1). Although the CDC encourages people not to panic, now is the time to activate plans and take necessary precautions. Employers should prepare for a wide range of decisions including: tough questions about restricting international travel, quarantines, educating management and employees on personal hygiene and cleaning protocols, leave from work, stockpiling antiviral medications and participating in public vaccination efforts.
March
Missouri Supreme Court Further Differentiates the Missouri Human Rights Act from Title VII
On February 24, 2009, the Missouri Supreme Court in Cynthia Hill v. Ford Motor Co. held that harassment claims under the Missouri Human Rights Act (MHRA) are to be analyzed under the contributing factor test announced in Daugherty v. City of Maryland Heights, continuing the trend of differentiating the MHRA from Title VII. The court also held that individual liability may be imposed not only on supervisors, but on anyone acting in the interest of the employer, even if the individual is not named in the underlying charge of discrimination.
Union Wars: SEIU vs. UHW and NUHW
An internal SEIU conflict led to the ouster of the leadership of one of its largest local unions in California and the formation of a rival union. The face-off between the two unions raises significant legal issues affecting numerous California health care employers.
February
Who's Got Your Number? N.Y. Employers Must Now Secure SSNs and Take Steps to Prevent Identity Theft
Recognizing the dangers of identity theft in the workplace, New York has joined a growing number of states that have enacted laws intended to protect employees from identity theft.
"Bounty Hunters" Lose Their State "Badge" as California Court of Appeal Clarifies Several PAGA Issues
In a case of first impression regarding the application of California's Private Attorneys General Act (PAGA) to class action settlements, a California Court of Appeal in Deleon v. Verizon Wireless holds that a settlement agreement of a non-PAGA class action waiving "all claims" bars a subsequent PAGA action on behalf of the same class, even if the state never approved the settlement.
January
Effective Date of E-Verify Federal Contractor Regulation Postponed Until February 20, 2009
The federal government has agreed to delay the effective date of the E-Verify federal contractor regulation announced in November until February 20, 2009. The delay raises the question of whether President-elect Obama will add it to his rescission list once he takes office.
Wellstone Act's Effective Date For New Mental Health and Substance Use Disorder Parity Rules Clarified
A technical correction to the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 clarifies the effective date of the Act for a group health plan maintained pursuant to a collective bargaining agreement.
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