In this time of technological advances, rapidly moving information and economic difficulties, employers increasingly are turning to non-competition agreements to protect their businesses. At the same time, individuals are growing more concerned about career mobility and employability. Although New York courts historically were loathe to enforce non-competes because of the strong public policy in favor of free competition and against restricting an individual’s ability to earn a living, those courts are now focused on balancing those competing interests — resulting in increasingly fact-specific (and divergent) results.

Within the past year alone, almost 100 complaints implicating social media have been filed with the National Labor Relations Board (“NLRB”). The NLRB’s Office of the General Counsel has responded by broadly interpreting employee rights under the National Labor Relations Act (“NLRA”), putting employers at risk of monetary fines, reinstatement of terminated employees, payment of lost wages, and criticism of internet and blogging policies. SRZ has regularly advised its clients and has been active in litigation involving issues related to social media.

The Department of Labor (“DOL”) has issued a final regulation intended to permit investment providers to impart investment advice to retirement plan participants and IRA beneficiaries. Congress has been concerned that individuals do not have enough access to professional investment advice to make informed decisions because, for years, rules have restricted access to investment advice. As a result, workers make investment mistakes that cost billions of dollars in forgone income. The DOL’s final rule seeks to enhance retirement security by improving workers’ access to quality investment advice and to reduce poor investment decisions by the 60 million active participants holding $2.2 trillion in retirement assets.

SRZ successfully represented the International Ladies’ Garment Workers’ Union (“ILGWU”) Death Benefit Fund, the UNITE HERE Staff Retirement Plan, their fiduciaries, Amalgamated Services Corp., Amalgamated Life Insurance Co., Alicare Inc. and individual defendant Michael Hirsch against a claim for more than $1.7 million in attorneys’ fees stemming from an ERISA action.

The Office of Federal Contract Compliance Programs (OFCCP) has announced that it is extending the time to submit comments on its proposed amendments to its regulations implementing Section 503 of the Rehabilitation Act. The proposed rule was published on December 9, 2011 and the comment period was set to end on February 7, 2012. The OFCCP has extended the comment period by 14 days and will now end on February 21, 2012.

A Connecticut jury has found that an employer was not motivated by discriminatory animus when it laid off an employee who was on maternity leave. The trial of Canales v. Schick Manufacturing, Inc., Civil No. 3:09-CV-253(MRK), in which the plaintiff made federal and state law claims of pregnancy discrimination, lasted four days in the United States District Court of Connecticut at New Haven. Jackson Lewis Partner (and Hartford Office Managing Partner) Beverly Garofalo and Jackson Lewis Partner Holly Cini were trial counsel in the case.

Every now and then, non-compete and trade secret plaintiffs conclude that the need for relief is so urgent that a temporary restraining order is not enough. Instead, they decide that relief must be granted by the court before notice and an opportunity to be heard is provided to the defendant.

A case being litigated in the Northern District of California has the potential to set new and interesting precedent on how the laws of unfair competition will deal with social media. For now, a California federal judge has ruled [pdf] that the employer's claims for misappropriation of trade secrets, intentional and negligent interference with economic advantage based on a former employee retaining, or absconding with, depending on the point of view, a Twitter account can proceed.

On Wednesday, February 15, 2012, the Equal Employment Opportunity Commission (EEOC) plans to hold a public meeting to discuss discrimination against pregnant workers and workers with caregiving responsibilities.

On January 30, 2012, the Department of Labor's (DOL) Wage and Hour Division issued a notice of proposed rulemaking to revise regulations under the Family and Medical Leave Act (FMLA) regarding leave for military caregivers and airline flight crews. The proposed regulations would implement changes to the FMLA made by the National Defense Authorization Act (NDAA) for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act (AFCTCA). Among other things, the new rules would expand military caregiver leave and add a special hours of service eligibility requirement for airline flight crew employees. In addition, the proposed rules also would impact certain regulations for calculating FMLA leave and for reinstating employees following FMLA leave.

On January 25, 2012, the U. S. Equal Employment Opportunity Commission (EEOC) reported that it received a record number of discrimination charges in 2011. During that same period, the EEOC also noted it obtained a record amount of relief for discrimination claimants.

The U.S. Equal Employment Opportunity Commission (EEOC) recently determined that employers must retain worker records to demonstrate their compliance with the Genetic Information Nondiscrimination Act (GINA). The EEOC's new rule applies Title II of GINA, which prevents the use of genetic information to discriminate against individuals whose genetic records may call into question the costs associated with potential medical treatment.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a draft copy of its Strategic Plan for fiscal years 2012 – 2016. The Congressionally-required plan discusses 13 benchmarks that the EEOC will use to measure how well it achieves its three main performance goals: (1) combating employment discrimination through strategic law enforcement; (2) preventing employment discrimination through education and outreach; and (3) delivering excellent service through effective systems, updated technology, and a skilled and diverse workforce. According to the EEOC, the revised plan will require "significant changes in the agency's approach to fulfilling its mission."

For the past two years, the U.S. Department of Labor (DOL) has discussed revising its recordkeeping regulations under the Fair Labor Standards Act (FLSA) to require every employer who classifies an employee as exempt to prepare a written justification for the exemption. This justification would then have to be provided to the employee and be made available to the DOL for its review.

Last month, the Acting General Counsel, Lafe Solomon issued revised instructions regarding informal settlement agreements with the NLRB. In the Memorandum (GC-11-04), the Acting General Counsel expanded the use of default language in informal settlement agreements. According to the revised procedure, whenever a Regional Office believes that there is a likelihood of the charged party/respondent being unable or unwilling to fulfill its settlement obligations, the Region is directed to include “default” language in the settlement agreement.

Increasingly, we are addressing theft of confidential company information by departing employees. We thought this topic was so important that we are bringing together a panel of employment lawyers and trade secret litigators to discuss the steps you should be taking to protect this information.

Monday, February 6, 2012 is a bittersweet day for employers across New York and elsewhere. Just hours earlier, their employees watched the New York Giants beat the New England Patriots in Super Bowl XLVI. For these employers, however, many of their employees won't be at work Monday morning. The reason? In a 2008 survey conducted by The Workforce Institute at Kronos Incorporated, 1.5 million people will call in sick to work and an additional 4.4 million will call in late. Outplacement firm Challenger, Gray & Christmas has put worker lost productivity from the Super Bowl at more than $820 million.

The OFCCP, the arm of the US Department of Labor, handles affirmative action obligations for federal contractors.

A non-U.S. citizen employee of a non-U.S. company lacked rights under the employee protection provisions of Section 806 of the Sarbanes-Oxley Act (“SOX”), the Department of Labor Administrative Review Board has determined in Villanueva v. Core Laboratories, NV.

On February 3, 2012, the U.S. Department of Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) issued proposed regulations that would exempt the purchase of a “Qualified Longevity Annuity Contract” (“QLAC”) from the account balance that would have to be distributed under the minimum distribution rules of Internal Revenue Code Section 401(a)(9).

On February 3, 2012, the Internal Revenue Service (IRS), published its Interim Report on Section 401(k) Compliance Check Questionnaire (“Interim Report”). The Interim Report is significant because, according to the IRS, 401(k) plans have become the most prevalent form of retirement plans in the United States – with more than 500,000 401(k) plans covering approximately 60 million Americans.

Littler Shareholder Stefan Marculewicz was among the panelists testifying on Tuesday before the House Committee on Education and the Workforce about the legal and practical implications of the President’s decision to make recess appointments to the National Labor Relations Board (NLRB or Board) last month. On January 4, 2012, President Obama sat three new members to the NLRB, as well as a new director to lead the Consumer Financial Protection Bureau (CFPB), while the Senate was still holding periodic pro forma sessions.

New FMLA forms appear to be around the corner. In 2008, the U.S. Department of Labor issued a set of forms, which were intended to assist employers in reviewing and granting requests for leave under the Family Medical Leave Act (FMLA). Updated forms have been submitted to the federal Office of Management and Budget (OMB), but have not yet been approved.

According to the facts described in her complaint, Kathy Minor was hired by Bostwick Laboratiries, Inc. as a medical technologist on December 24, 2007.

On January 25th, National Labor Relations Board Acting General Counsel Lafe Solomon issued his second report summarizing cases that involve employee activity on social media outlets like Facebook or Twitter. General Counsel Memorandum OM 12-31 follows on the heels of the Acting General Counsel’s August 2011 report and generally summarizes 14 recent and “extremely fact-specific” social media cases reviewed by the Board’s Division of Advice, half of which involved questions about employer social media policies. The remaining cases involved employees who were discharged after they posted comments to Facebook. Unfortunately, the Memorandum does not include any identifying information about the cases, making it difficult to do more than take the summaries at face value. Although the cases reflect the current thinking of the Board’s national and regional level staff, employers should note that the Acting General Counsel selected these cases from the Board’s Division of Advice opinions on whether to issue a complaint, and not from formal Board decisions.

Employers that sponsor participant-directed individual account plans, such as 401(k) plans, must comply with two new sets of rules governing fee and other disclosures intended to ensure that plan participants can make informed investment decisions. It is imperative that plan sponsors understand and comply with these new disclosure requirements. Although the compliance deadlines have been extended (see http://www.dol.gov/ebsa/newsroom/fs408b2finalreg.html), plan sponsors should take advantage of this extension to ensure that they are in compliance with the new rules.

The Federal Motor Carrier Safety Administration (FMCSA) recently published a final rule establishing new Hours of Service (HOS) regulations for commercial motor vehicles (CMV). The 2011 final rule—which was preceded by years of litigation—institutes a new 30-minute rest break requirement for drivers, mandates that the 34-hour restart provision include two off-duty periods between 1:00 a.m. and 5:00 a.m., and revises the definition of on-duty time. The final rule also establishes penalties for egregious violations of the HOS regulations and revises log book requirements for drivers involved in oilfield operations.

On February 3, 2012, the Department of Labor (“DOL”) published final regulations setting out the fee disclosure rules for persons or entities providing services to retirement plans governed by ERISA. See Treas. Reg. §2550.408-2; 77 Fed. Reg. 023 (Feb. 3, 2012) pgs. 5632-5659. These regulations detail the disclosures that a covered service provider must furnish to a covered plan fiduciary before that fiduciary may enter into or extend contracts for services to the plan under a new prohibited transaction class exemption.

Employers faced with wage and hour litigation often seek to condition settlement on the agreement of plaintiffs to keep the settlement and its terms confidential. Confidentiality is often an important condition of settlement because employers may hope to avoid “copycat” claims by other employees and face the possibility that disclosure of a wage and hour settlement may be viewed by the public as an “admission” of liability.

Nurses at the University of Illinois Medical Center (the “Medical Center”) overwhelmingly voted to ratify a new three-year contract covering more than 1,000 nurses represented by the Illinois Nurses Association (the “Union”). The contract includes enhanced staffing language, a bonus program and wage increases of up to 17.85% over the three-year contract term.

In one of many recent Department of Labor (DOL) enforcement actions against the home health care industry, a federal court entered a consent decree ordering Aspen Nursing Services Inc. to pay $210,000 in back pay and liquidated damages to 22 employees. Aspen provides home health aides for individuals with disabilities in Kentucky and Ohio.

Betty works for The Big Store as a non-exempt Accounts-Payable Clerk. She is assigned to help with taking a merchandise inventory over one weekend, and she works a total of 60 hours in that workweek.

On January 3, 2012, the National Labor Relations Board (NLRB) ruled that a class action waiver in a mandatory employment arbitration agreement is illegal. D.R. Horton, Inc. and Michael Cuda, 357 NLRB No. 184 (2012). This decision comes less than a year after the U.S. Supreme Court upheld such a waiver in a consumer arbitration agreement. AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011). Further, in the days since the D.R. Horton decision was published, the Supreme Court again has upheld a consumer arbitration agreement that contained a class action waiver. CompuCredit Corp. v. Greenwood, No. 10-948 (Jan. 10, 2012).

Last week, at a Joint Meeting of the IRS's top officials with ERISA/tax attorneys and accountants from across the country, the IRS announced a pilot program that targets companies with at least 2,500 participants. Colleen Patton, the IRS's Area Manager for the Pacific Coast, says the pilot program has rolled out in her region, and the IRS expects to expand the program across the nation's remaining four geographic areas (Northeast, Mid-Atlantic, Great Lakes, and Gulf Coast).

In a final rule published by the Equal Employment Opportunity Commission (EEOC) on February 3, 2012, the agency has extended the record-keeping requirements imposed under Title VII and the Americans with Disabilities Act (ADA) to entities covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). The rule takes effect April 3, 2012.

DOJ Settles with Company that Specified Acceptable I-9 Documents for Latino Workers.

The National Labor Relations Board under the Obama Administration has been in the news quite a bit lately. It has repeatedly been accused of ignoring past legal precedent in order to favor employees and unions over employers. While the agency has always been one of the most politicized in the federal government, it seems to have really outdone itself in a recent case involving a dealer. You be the judge.

On January 30, 2012, the Department of Labor (DOL) released a proposed rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act. Both laws enacted in 2009 entitle more employees to family and medical leave under the federal FMLA.

The National Labor Relations Board's Acting General Counsel issued a new report last week discussing 14 recent social media cases. The Board's social media cases are a hot issue and many of you are following them closely, so I decided to partner up with fellow bloggers, Teresa Thompson and Norah Olson Bluvshtein of netWORKed, to fill you in.

The National Labor Relations Board’s Acting General Counsel issued a new report last week discussing 14 recent social media cases. We know the Board’s social media cases are a hot issue and that many of you are following them closely, so we decided to partner up with fellow blogger, Rick Ross of Employer Law Update, to fill you in.