Friday, April 27, 2007

Week In Review (April 27, 2007)

Most Popular Federal Law Article

Who’s There? What to Do When the Government Is Knocking on Your Door - An Employer’s Guide to Handling Government Visits and Information Requests.
32 page report on what to do when Government agencies are looking for information, from OSHA to the FBI.
Located On: Littler Mendelson, P.C.

Most Popular State Law Article

Missed Meal & Rest Periods Will Cost Employers More Following California Supreme Court Decision.
Everything you need to know about how the Kenneth Cole decision will cost you. 
Located On: Littler Mendelson, P.C.

Most Popular Headlines

Pride, envy and other workplace sins
North Jersey - April 24, 2007

Friday, April 20, 2007

Week In Review (April 20, 2007)

Most Popular Federal Law Article

EEOC Wins Appeal of $3.4 Million in Pre-employment Strength Testing of Females (pdf).
As many employers know, pre-employment strength testing of physical strength is quite common, particularly in jobs requiring physical strength as part of an essential job function.
Located On: Phelps Dunbar LLP

Most Popular State Law Article

California Supreme Court Rules in Favor of Employees in Long-Awaited Meal and Rest Break Case.
The California Supreme Court has finally decided the meal and rest break issue.
Located On: Hogan & Hartson LLP

Most Popular Headlines

Court: Employees must be paid for lunch breaks
Silicon Valley Business Journal - April 17, 2007

Monday, April 16, 2007

California Supreme Court Holds Meal Period Penalties Actually Are Wages

In Murphy v. Kenneth Cole Productions, the California Supreme Court unanimously decided that the extra pay California employees receive when meal and rest periods are not properly given is a form of “wages,” rather than a “penalty.” Nevermind that you don’t have to do any work to earn the “wage.” If your meal period starts 5 minutes later than the law allows, you get the extra hour’s pay.  If your meal period is two minutes too short, you get the extra hour’s pay, even if you are being paid for the 2 minutes of extra work you performed. The Legislature apparently intended this penalty to be a wage because it meted out the penalty’s value in terms of an hour’s pay. If the Legislature had required the penalty to be paid in shrimp, I guess the Court would have called the penalty a bouillabaisse.  Why does anyone care about this?  The statute of limitations for unpaid “wages” (now including meal period pay) is three years.  The statute of limitations for penalty claims is just one year.

DGV

Friday, April 13, 2007

Week In Review (April 13, 2007)

Most Popular Federal Law Article

Employers Must Use New EEO-1 Form for 2007.
September may seem like a long way off, but employers must be ready to file the new EEO-1 form.
Located On: Ford & Harrison LLP

Most Popular State Law Article

Defamation in the securities industry: Important decision for financial institutions.
Disclosures made on the Form U-5 are protected by absolute immunity and not a qualified privilege.
Located On: Nixon Peabody LLP.

Most Popular Headlines

Employer cannot question claimants about the accuracy of their SSNs
CCH - April 06, 2007

Thursday, April 12, 2007

Dispute Resolution: What is the lesson from the Don Imus story

What can employment lawyers learn about prevention and resolution of employee disputes from the Don Imus story?

* The rules of engagement have changed . . . if an employer doesn’t have a policy against discrimination, publish one now;

* All employees, from the top of the org chart to the bottom, but particularly the top, must be trained to know what the rules say, how they will be enforced, and what each employee’s responsibility is to enforce them;

* When it comes to discrimination, some infractions will not be subject to progressive discipline;

* Speed and decisiveness sends a clear message that all employees and customers can understand.

As succinctly summarized by DiversityInc.com (April 12, 2007): Racial incidents are no longer a side issue for companies like this. What these companies do and how they’re perceived affect everything, including employee morale and retention. It’s really hard to be proud of a company that exhibits no moral fiber, and in our “YouTube” society, you have a “New York minute” to make the right choice.

Friday, April 06, 2007

Week In Review (April 6, 2007)

Most Popular Federal Law Article

New H-1Bs May Be Filed On Friday, March 30, 2007 - Cap May Be Hit In One Day.
The annual H-1B quota was likely met yesterday.
Located On: Ogletree Deakins

Most Popular State Law Article

N.J. Supreme Court Rules that a Retaliation Case Requires Underlying Complaint Be Made “Reasonably and in Good Faith”
It’s hard to imagine that it took this long, but plaintiff’s are now required to establish that a retaliation claim under the NJLAD was reasonably filed and done in good faith.
Located On: Littler Mendelson, P.C.

Most Popular Headlines

Bosses can fire for almost any reason
The Desert Sun - April 02, 2007

Friday, March 30, 2007

Week In Review (March 30, 2007)

Most Popular Federal Law Article

Beware: Your Employee Handbook May Be Hazardous Under the NLRA.
Non-Union employees are also protected by the NLRA and employers must ensure that, even in non-union workplaces, their employee handbook isn’t violating the National Labor Relations Act.
Located On: Nixon Peabody LLP.

Most Popular State Law Article

“Exempt" Status Under California Law: Avoid the Pitfalls.
It’s been difficult for California employers to determine who is and who isn’t exempt from overtime and minimum wage requirements; this article helps you sort it all out.
Located On: Shaw Valenza LLP

Most Popular Headlines

Secretary shouldbe paid for her OT
The Post and Courier - March 26, 2007

Friday, March 23, 2007

Immigration Law and California Employment Law

Two recent cases examine the intersection of immigration law and employment litigation and both decisions are in favor of the immigrants.

First, California employment law does not make distinctions between employees working lawfully or illegally.  Labor Code 1171.5 plainly declares:

(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals
regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.  (b) For purposes of enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

In Reyes v. Van Elk, the California Court of Appeal held that section 1171.5 is not preempted by federal immigration laws.  Reyes and others accused Van Elk of failing to pay the “prevailing wage.” The Superior Court held that federal immigration law preempted section 1171.5 and that Reyes could not seek unpaid prevailing wages because he was an illegal immigrant. The court of appeal reversed, holding that federal law (IRCA) does not preempt section 1171.5, and that Reyes had standing to sue for unpaid wages.

Second, in a case having broad implications for employers hiring workers under immigration visas such as H1-B’s, the Ninth Circuit Court of Appeals held that an employer could be held liable for wrongfully discharging an employee who was not authorized to work in the U.S.  The case is Incalza v. Fendi N. Am. Incalza worked for Fendi under an E-1 visa. When a French company bought Fendi, the E-1 visa no longer was valid.  Fendi, which did apparently not want to retain Incalza anyway, discharged him because he was not lawfully working in the U.S.  Incalza asked for a leave of absence to obtain a visa or to marry his fiance, a U.S. citizen. 

Incalza sued for breach of contract not to terminate without good cause, among other things.  Fendi argued that “good cause” was established because Incalza was not lawfully allowed to work, and Fendi was not obligated to wait until Incalza became authorized to work.  A jury found in favor of Incalza.  Fendi appealed and ran right into Stephen Reinhardt. 

The Court of Appeals said that IRCA does not require employers to terminate workers who may resolve immigration status if they are granted a leave of absence. Does the law require granting a leave of absence? No, but this did not stop the Court of Appeals.  The Court said that an employee on leave is not actually “employed” under IRCA. (This is news to employers who must provide all sorts of leaves with guaranteed reinstatement.) Because the employee is not really “employed” while on leave, the court reasoned, the employer can comply with IRCA and not discharge the worker. 

Distinguishing Supreme Court authority and the IRCA statute itself, the Court announced this rule:  “as a general rule, individuals who are indisputably not authorized to work must be discharged immediately. An individual who has the opportunity to switch from an E-1 to an H1-B . . . is, however, another matter.”

Incidentally, the court also held that IRCA does not conflict with Lab. Code section 1171.5, just as the state court in Van Elk did.  So, that issue is settled unless the Supremes take up Fendi.

In light of this case, employers seeking to discharge employees must carefully examine whether to use the expiration of a visa as the sole justification for termination.  The courts may well say that it was not “necessary” to discharge the worker merely because he or she no longer was authorized to work in the U.S. 

Stay tuned.

Friday, March 16, 2007

Week In Review (March 16, 2007)

Most Popular Federal Law Article

Latest Developments in I-9 Compliance: What Every Employer Needs to Know.
What Obligations Do Employers Have Relating to Verifying the Employment Eligibility of All Employees?
Located On: Buchanan Ingersoll & Rooney

Most Popular State Law Article

The Risks of Hiring Someone Bound by a Noncompetition Agreement.
You are about to hire a new employee when you learn that she signed a noncompetition agreement with her current employer. “No problem,” you think, “courts never enforce those things. Besides, even if a court does enforce the noncompetition agreement, it will not affect me as the new employer because I did not sign the agreement.”
Located On: Fredrikson & Byron, P.A.

Most Popular Headlines

Former ‘American Idol’ employee sues for sexual harassment
Orlando Sentinel - March 13, 2007

Friday, March 09, 2007

Week In Review (March 9, 2007)

Most Popular Federal Law Article

Top Ten Labor and Employment Events and Trends of 2006 (pdf).
This issue highlights the Top Ten Labor & Employment Events and Trends of 2006. Included on this list are: Change In Congressional Leadership May Lead To Profound Shift In The Congressional Legislative Agenda, NLRB Clarifies The Definition of “Supervisor”; Supreme Court Expands Protections Against Employer Retaliation; Targeting Hidden Bias: EEOC Revises Compliance Manual To Address Implicit Discrimination; Davids 1 through 100 v. Goliath: FLSA Collective Actions Target High Profile Companies; Pandemic Fever: Employers Confront Need For Contingencies To Counter Potential Pandemic Illnesses; “Change To Win” Coalition Initiates Aggressive Plans to Organize “Millions of Workers”; New E-Discovery Rules Will Require Comprehensive Document Retention Programs; Congress Enacts Sweeping New Pension Legislation; Support Our Troops! The DOL Implements New Military Leave Act Regulations.
Located On: Ford & Harrison LLP

Most Popular State Law Article

California Management Update (pdf).
Highlights: New Employment Laws for 2007 and Beyond; Finally Some Clarity - California Department of Fair Employment and Housing Approves Sexual Harassment Training Regulations; Companies Must “Shine the Light” on their Security Breaches; Prior Periods of Employment Must be Considered When Determining an Employee’s Eligibility for FMLA Leave; California Supreme Court To Review Whether Noncompetition Agreements Are Invalid Even If Narrowly Tailored; Employers May Recover Commissions Advanced To Employees But Never Earned.
Located On: Ford & Harrison LLP

Most Popular Headlines

Young manager harassing Baby Boomer leads to EEOC fine
OregonLive - March 06, 2007

Sunday, March 04, 2007

In Arbitration, Focus on Pre-Hearing Conference

Some of the nation’s most experienced arbitrators recently conducted the Third Annual ABA Section of Dispute Resolution Arbitration Training Institute in New York. The arbitrators stressed that one of the most important phases of arbitration takes place well-before the hearings themselves: the initial pre-hearing planning conference. In that initial call or conference with the arbitrators, advocates should be prepared to address arbitrability, discovery, including e-discovery, substantive motions, the potential length of the hearing, attendance of witnesses, submission of briefs, and even whether the parties will prefer a brief or detailed award. As the courts continue to defer to arbitration, counsel should play an active role in streamlining the process and resist the tendency to make arbitration as complicated, expensive, and drawn out as litigation. 

Friday, March 02, 2007

Week In Review (March 2, 2007)

Most Popular Federal Law Article

A Checklist For Preventing Human Resources Problems.
Management concerned with employment law liability should be focused on prevention: preventing lawsuits, preventing employee morale problems, and preventing the day-to-day hassles personnel issues can create. The road to success in this area is not paved with good intentions, however. Employers must understand basic human resources principles to avoid the employment law pitfalls that await.
Located On: Shaw Valenza LLP

Most Popular State Law Article

U.S. Data Protection Laws, With a Focus on California.
In the U.S., no comprehensive national law yet exists, which generally requires notification of security breaches involving personal information. California passed the first data breach notification statute in 20032 and over 30 states have since enacted similar laws. The California law, commonly referred to as “SB 1386”, requires owners, licensors, or custodians of personal information to notify data subjects whose information was (or is reasonably believed to have been) acquired in an unauthorized fashion. California laws also include proactive obligations related to data destruction and maintaining reasonable security measures.
Located On: Cooley Godward Kronish LLP.

Most Popular Headlines

Job separation agreements don’t eliminate right to sue
Charleston Post & Courier - February 27, 2007

Wednesday, February 28, 2007

Employer’s Paid Leave Policy Illegal Under FMLA

The Seventh Circuit held that an employer’s FMLA policy violated the statute because it required the use of vacation pay when the employee already was receiving disability benefits. In Repa v. Roadway Express, the employee took FMLA for surgery.  Under the employer’s policy, she was required to use vacation and sick time as a “substitute” for FMLA leave. However, she also received $300 per week from a union’s disability insurance plan.  Although she received both forms of pay, she sued Roadway, claiming that the requirement that she use paid sick and vacation benefits violated the FMLA because of a DOL regulation, 29 CFR 825.207(d)(1).  The Seventh Circuit agreed, rejecting all of Roadway’s arguments that the regulation was not applicable.  The Court refused to consider Roadway’s argument that the regulation is invalid because Roadway did not make the argument in the district court.

Friday, February 23, 2007

Week In Review (February 23, 2007)

Most Popular Federal Law Article

The Employee Free Choice Act: It’s More than Just a Misleading Name.
The Employee Free Choice Act (EFCA), introduced into the U.S. House of Representatives on February 5, 2007, would amend the National Labor Relations Act (NLRA) to change dramatically the world of both union organizing and bargaining over first time labor agreements. The proposed law, which also will soon be introduced into the U.S. Senate, would constitute the most significant change to the NLRA in its over 70-year history.
Located On: Littler Mendelson, P.C.

Most Popular State Law Article

Competition from Former Employees: Ohio Appellate Court Clarifies Application of the “Inevitable Disclosure” Doctrine.
A recent court decision in Ohio provides an important new interpretation of the rights, and limitations, that employers may face when key employees leave and begin to compete. The decision also highlights several critical steps that employers should take if and when an employee leaves to compete, and when company trade secrets, other confidential information, and customers are at risk. In particular, employers must move quickly to protect against threats to their trade secrets and customer relationships, and they must take steps to carefully identify – and maintain the confidentiality of – their trade secrets and other sensitive business information.
Located On: Littler Mendelson, P.C.

Most Popular Headlines

Opinion: Workplace sex always carries consequences
News Leader - February 19, 2007

Wednesday, February 21, 2007

Try Mediation

Don’t be reluctant to propose mediation for fear that it is a sign of weakness. The consensus of the litigators and neutrals who attended the New York State Bar Association Committee on ADR program, “Winning Through Mediation: Know When to Hold ‘Em and Know When to Fold ‘Em,” is that it is always prudent to propose mediation and should not be viewed as a sign of weakness. Attorneys can propose mediation to their adversary even before a case is filed or in the early stages of litigation by using these strategies: state that it is your “practice in every case” to discuss mediation before the case gets too deeply into litigation; include an offer to mediate in a demand letter or position statement; ask the judge or law clerk to recommend mediation.  Empirical research suggests that those making the first offer to negotiate may even strengthen their bargaining position by appearing to negotiate from a position of power and confidence.