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Employment Law Blog

Category: Employment Law

Friday, March 09, 2007

Week In Review (March 9, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9460”>Top Ten Labor and Employment Events and Trends of 2006 (pdf).</A>
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

<a >California Management Update (pdf).</A>
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

<a TARGET=“_blank”]Young manager harassing Baby Boomer leads to EEOC fine[/url]
OregonLive - March 06, 2007

Posted by Patrick Della Valle on 03/09 at 08:09 AM
Employment Law
Friday, February 16, 2007

Week In Review (February 16, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9276”>Unlocking the Power of Documentation: Why and How to Document.</A>
What would you say if I told you there is something that can help you improve employee performance, reduce the risk of being sued, and improve your case if an employee does sue? You would probably wonder what could hold such mystical powers.
Located On: Fredrikson & Byron, P.A.

Most Popular State Law Article

<a >Three Often-Overlooked and Potentially Costly Employment Requirements.</A>
Employers know they must comply with numerous state and federal laws. They also know that failure to do so can lead to significant monetary damages and/or other penalties, either by way of employee claims or enforcement actions initiated by state and/or federal agencies. This article highlights three often-overlooked and potentially costly employment requirements.
Located On: Fredrikson & Byron, P.A.

Most Popular Headlines

<a TARGET=“_blank”]Study: One ‘Bad Apple’ Employee Spoils A Workplace[/url]
CBS5 - February 14, 2007

Posted by Patrick Della Valle on 02/16 at 09:27 AM
Employment Law
Friday, February 02, 2007

Week In Review (February 2, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9123”>OSHA Injury and Illness Summaries Must be Posted on February 1.</A>
This is a reminder that beginning February 1, employers who are not exempt from this requirement (see the list below) must post OSHA Form 300A, which is a summary of the total number of job-related injuries and illnesses that occurred in the preceding year. Employers must also provide information about the annual average number of employees and total hours worked during the calendar year to assist in calculating incidence rates.
Located On: Ford & Harrison LLP

Most Popular State Law Article

<a >Preemployment Testing Challenged under Antidiscrimination Laws,</A>
Anti-discrimination laws generally are simple to understand and abide by. Employers are prohibited from making decisions that are based on illegal criteria such as race, sex, or religion. In most cases, there is a straightforward analysis regarding the reasons an employer treated a plaintiff less favorably than a similarly situated co-employee.
Located On: Shaw Valenza LLP

Most Popular Headlines

<a TARGET=“_blank”]‘At will’ employment has limits [/url]
Charleston Post and Courier - January 29, 2007

Posted by Patrick Della Valle on 02/02 at 08:30 AM
Employment Law
Friday, January 19, 2007

Week In Review (January 19, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9000”>UPS Violated ADA By Excluding Deaf Drivers Who Failed To Satisfy DOT Hearing Standard (pdf).</A>
One of the requirements applied by UPS to those applicants seeking to drive the familiar brown “package cars” was that they pass the physical examination (including a hearing exam) that the DOT requires of drivers of commercial vehicles of a gross vehicle weight rating (GVWR) of at least 10,001 pounds.
Located On: Proskauer Rose LLP

Most Popular State Law Article

<a >DWP Employee’s Retaliation Claim For Opposing Discrimination Should Not Have Been Dismissed (pdf).</A>
Eric Taylor, an electrical engineer employed by the Los Angeles Department of Water and Power, alleged that he suffered from multiple acts of retaliation by his supervisor (Bruce Hamer) after Taylor acted as a “supporting and material witness” on behalf of a former subordinate (Donald Coleman) in Coleman’s claim that he had been discriminated against when his employment was terminated for cause.
Located On: Proskauer Rose LLP

Most Popular Headlines

<a TARGET=“_blank”]A leader doesn’t have to be the boss[/url]
Asbury Park Press - January 15, 2007

Posted by Patrick Della Valle on 01/19 at 10:57 AM
Employment Law
Friday, January 12, 2007

Week In Review (January 12, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=8941”>Electrical Workers Local Must Pay Fines And Fees for Contempt of Appeals Court Orders.</A>
One of the nation’s largest local construction trades unions has been slapped with fines and fees exceeding $300 thousand for its contemptuous behavior in violating the federal labor law’s prohibition on “secondary boycotts.”
Located On: Jackson Lewis LLP

Most Popular State Law Article

<a >San Francisco’s Sick Leave Ordinance (pdf).</A>
Effective February 5, 2007, all employers with employees working within the City and County of San Francisco must comply with a new San Francisco ordinance, which requires employers—regardless of size—to provide paid sick leave. 
Located On: Fisher & Phillips, LLP

Most Popular Headlines

<a TARGET=“_blank”]Donald is Sued for Ages of Sin[/url]
New York Post - January 08, 2007

Posted by Patrick Della Valle on 01/12 at 11:36 AM
Employment Law
Friday, December 22, 2006

Week In Review (December 22, 2006)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=8829”>EEOC Vice Chair Tells U.S. Employers to Conduct Employment Law Audits to Prepare for EEOC’s Aggressive New Approach to Fighting Systemic Discrimination (pdf).</A>
This update discusses the Equal Employment Opportunity Commission’s (EEOC) aggressive new approach to combatting (often unintentional) “systemic discrimination” by U.S. employers. During a recent speech to Hogan & Hartson clients at the Employment Group’s 2006 Labor & Employment Seminar, EEOC’s Vice Chair identified essential action items to help all U.S. employers avoid or minimize liability for systemic discrimination. The update describes these action items and explains how the firm can help our clients implement them.
Located On: Hogan & Hartson LLP

Most Popular State Law Article

<a >Data Breach Class Action Filed for Negligence Related to Stolen Laptop.</A>
The emergence of a number of state laws aimed at protecting sensitive personal information and curbing the explosion of identity theft is beginning to have a foreseeable effect on workplace litigation. Such statutes are leading to negligence lawsuits filed by employees against their employers for failing to take appropriate measures to protect the computer databases, company laptops, and other repositories of confidential and personal information. These negligence claims have the potential to create significant exposure for employers, especially those that have not taken tangible steps to safeguard sensitive information.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]How big will your raise be in 2007?[/url]
CNN Money - December 20, 2006

Posted by Patrick Della Valle on 12/22 at 10:23 AM
Employment Law
Friday, December 01, 2006

Week In Review (December 1, 2006)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=8592”>UNITE HERE Hits Home Runs.</A>
In a deft display of negotiating this past summer, UNITE HERE scored major victories in New York, Chicago and Honolulu. Clearly targeting Hilton Hotels Corp., UNITE HERE reached a five-year agreement called “partnership for growth” which allows neutrality and card check agreements “where appropriate.”
Located On: Fisher & Phillips, LLP

Most Popular State Law Article

<a >Florida Employers Must Display Minimum Wage Poster Effective January 1, 2007.</A>
Effective January 1, 2007, Florida’s minimum wage will increase to $6.67 per hour and employers who are required to pay the Florida minimum wage must prominently display a poster containing the Florida minimum wage. Florida’s minimum wage poster can be downloaded in English and Spanish from the Agency for Workforce Innovation’s webpage at: http://www.floridajobs.org/resources/fl_min_wage.html Click. here for a copy of the poster.
Located On: Ford & Harrison LLP

Most Popular Headlines

<a TARGET=“_blank”]Don’t sit up straight![/url]
Chicago Tribune (Registration Required) - November 28, 2006

Posted by Patrick Della Valle on 12/01 at 11:14 AM
Employment Law
Friday, November 17, 2006

Week In Review (November 17, 2006)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=8489”>Employers Beware as Retaliation Claims Increase.</A>
Companies faced with a Title VII lawsuit often think that if they can successfully defend against the underlying charge of discrimination or harassment, they are out of the woods. However, as the employer in Stone-Clark v. Blackhawk, Inc. (D.D.C., No. 04-0373, 11/1/06) recently learned, this is not always the case, especially when the lawsuit includes an allegation of retaliation.
Located On: Helms Mulliss & Wicker

Most Popular State Law Article

<a >San Francisco Requires Employers to Offer Paid Sick Days.</A>
San Francisco employers must provide paid sick leave to employees—including part-time employees, temporary workers and participants in Welfare-to-Work Programs—who are employed within the geographical limits of the City and County of San Francisco under an ordinance approved by the City’s voters on November 7, 2006.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]‘What’s your greatest weakness?’ 3 smart replies[/url]
CNN Money - November 14, 2006

Posted by Patrick Della Valle on 11/17 at 09:28 AM
Employment Law
Friday, November 03, 2006

Week In Review (November 3, 2006)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=8386”>The Changing Picture On Minimum Wage.</A>
Employers consistently read advisories and bulletins alerting them to proposed legislation that would amend the federal or state minimum wage. Discussions and worries about increased payroll costs traditionally heat up during the summer months and then fizzle out as the legislation stalls in Congress and state legislatures.
Located On: Fisher & Phillips, LLP

Most Popular State Law Article

<a >Must A Complaint Be “Official” To Count?</A>
The Massachusetts Supreme Judicial Court recently ruled that restaurant servers who complained to management that a new tip policy violated state wage laws could pursue their claims for retaliatory discharge. Three waiters at a famous Boston restaurant were fired after complaining to management that a new tip policy violated state wage laws.
Located On: Fisher & Phillips, LLP

Most Popular Headlines

<a TARGET=“_blank”]Bully can’t be stopped apparently[/url]
Orlando Sentinel - November 01, 2006

Posted by Patrick Della Valle on 11/03 at 10:06 AM
Employment Law
Friday, October 06, 2006

Week In Review (October 6, 2006)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=8140”>Disclosure of Employee Personal Data: What are an Employer’s Legal Obligations?</A>
The story is now well known. A data analyst for the US Department of Veteran’s Affairs took home a laptop and disks containing the names, social security numbers, dates of birth and disability ratings of nearly all active duty military personnel and virtually every person discharged from the United States military since 1975. When the employee’s home was later burglarized in early May, the electronic data was among the items stolen. A Department policy prohibiting employees from removing such data did not deter the employee from taking the data home and, as a result, the personal information of approximately 26.5 million persons may have been compromised. 
Located On: Faegre & Benson

Most Popular State Law Article

<a >“At Will” Language Preserved Employer’s Right To Terminate Without Cause (pdf).</A>
Brook Dore, who was employed as a management supervisor, countersigned an employment agreement (in the form of a letter) that characterized his employment as “at-will,” which was defined as the right of either party to terminate the employment “at any time.”
Located On: Proskauer Rose LLP

Most Popular Headlines

<a TARGET=“_blank”]Employees feel forced to work without pay[/url]
Asbury Park Press - October 02, 2006

Posted by Patrick Della Valle on 10/06 at 10:15 AM
Employment Law
Friday, September 08, 2006

Week In Review (September 8, 2006)

Ford & Harrison and Fisher & Phillips capture this week’s honors!

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=7896”>Things Don’t Always Go Better With Coke! (pdf).</A>
On August 31, 2006, the Second Circuit Court of Appeals in New York stunned the home care industry once again, by affirming its 2004 decision in Coke v. Long Island Care at Home. The court’s earlier decision had been vacated by the Supreme Court and remanded for further review in light of a Department of Labor (“DOL”) Memorandum on the companionship exemption’s coverage of agency-employed home care workers under the Fair Labor Standards Act (“FLSA”).
Located On: Ford & Harrison LLP

Most Popular State Law Article

<a >“That’s Not Harassment—We Just Have A ‘Sexually Charged’ Atmosphere”.</A>
The California Supreme Court recently unanimously held that sexual antics and sexual language by the writers for the television show “Friends” was not severe or pervasive enough to create a hostile work environment in violation of California State law.
Located On: Fisher & Phillips, LLP

Most Popular Headlines

<a TARGET=“_blank”]Help staff be winners, not whiners[/url]
Maine Today - September 01, 2006

Posted by Patrick Della Valle on 09/08 at 10:07 AM
Employment Law
Friday, September 01, 2006

Week In Review (September 1, 2006)

Congrats to Nixon Peabody for this weeks most popular Federal and State article!

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=7851”>Denying Light-Duty Assignments to Pregnant Employees (pdf).</A>
Swift Transportation Co., a Phoenix-based trucking company, provided light-duty assignments only to employees out on workers’ compensation leaves; i.e., those who had sustained on-the-job injuries. Employees with offduty injuries or disabling conditions, including pregnant employees, were denied light-duty jobs. Amanda Reeves, a pregnant over-the road truck driver, sued Swift under the Pregnancy Discrimination Act when Swift refused her request to be assigned to an available light-duty position. Swift then fired her two weeks after she announced she was pregnant and after she refused to return to her regular driving job.
Located On: Nixon Peabody LLP.

Most Popular State Law Article

<a >New Proof-of-Age Requirement for New York Employers When a Worker Claims to Be between 18 and 25 years old (pdf).</A>
A little-noticed amendment to New York’s Labor Law imposes a new record-keeping requirement on New York employers. We are all familiar with the requirement that, for most types of employment, minors under age 18 must provide employers with employment certificates, commonly known as “working papers,” to lawfully hold jobs. Employers must keep the employment certificate on file during the minor’s employment and produce it to the New York Department of Labor (DOL) on demand. Employers are subject to penalties and fines if they hire a minor without obtaining an employment certificate.
Located On: Nixon Peabody LLP.

Most Popular Headlines

<a TARGET=“_blank”]6 rules for prospering in the workplace[/url]
Delaware Online - August 27, 2006

 

Posted by Patrick Della Valle on 09/01 at 09:30 AM
Employment Law
Friday, August 25, 2006

Week In Review (August 25, 2006)

Congrats to Jones Walker and Sedgwick for this week’s honors:

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=7797”>Cross Your T’s and Dot Your I-9 Compliance (pdf).</A>
The “I-9” is what people use to describe the Employment Eligibility Verification Forms I-9 and is one of the tools used by the government to try to ensure that employers are hiring only those individuals eligible to work in the United States.
Located On: Jones Walker

Most Popular State Law Article

<a >Huge Job Creation, Destruction Require Adaptation by Employment Lawyers.</A>
The structure of employment in California shifts rapidly. The traditional employer-employee relation continues to be impacted by the dramatic job creation and destruction and job turnover that is occurring in our state’s economy. This relation also is being altered by the expansion of contingent staffing arrangements and temporary staffing agencies, by the rise of professional employer organizations and by the impacts of globalization and offshoring.
Located On: Sedgwick, Detert, Moran & Arnold LLP

Most Popular Headlines

<a TARGET=“_blank”]Court ruling puts ‘screamers’ on notice[/url]
Las Vegas Business Press - August 18, 2006

 

Posted by Patrick Della Valle on 08/25 at 06:20 AM
Employment Law
Tuesday, August 08, 2006

Should you have employees sign employment contracts?

Parties enter into written agreements in order to manage expectations.  A written agreement should clearly specify the parties’ rights, duties, and obligations.  The agreement is an insurance policy against a party’s failure to act in accordance with the agreement terms.  That said, deciding on whether to enter into employment agreement with an employee is not like deciding to enter into any other type of agreement.  That’s because common-law already provides the foundation (i.e., the rights, duties and obligations) for the relationship between an employer and employee.  That foundation is the employment at-will doctrine.

In most states an employer is free to terminate an employee for any reason or no reason at all.  So long as the employer doesn’t violate a statutory prohibition (e.g., discrimination based on race, sex, age, religion or disability) it’s entirely free to discharge an employee for good cause, bad cause or no cause at all.  Some states do place additional statutory limits on an employer’s right to discharge an employee (e.g., termination in violation of some broad public policy), while other states recognize the possibility that an employer can limit its own rights to discharge (e.g., by providing a step-by-step discharge policy in their employee manual).  In relative comparison to the broad right to discharge, however, these limitations are exceedingly narrow.

Some employees (and most unions) consider an employer’s power to discharge as being too great.  Of course, no one ever questions an employee’s absolute right to terminate his or her employment at any time and for any reason.  In part, this is the basis of the bargain between an employer and employee.

So what does this have to do with deciding whether or not to enter into an employment agreement?  Everything!  It makes no sense whatsoever for an employer to enter into an employment agreement with 99% of employees.  That’s because an employer has no need to manage expectations—he has the right to demand an employee’s adherence.  It may sound like common sense, but it’s not.  It’s just a well understood workplace rule.  Entering into an employment agreement with most employees is an unnecessary exercise that provides an employer with no greater protection than it would otherwise already have.

That’s not to say that employment agreements never make sense.  There is that 1% of employees who present a problem.  They are almost always high-level executives, sales employees, or employees with other technical expertise.  These employees possess confidential information and know-how, so you enter into an employment agreement with these employees in order to protect yourself against future competitive disadvantage.  Stated simply, you don’t want your competitors to get their hands on these employees or the information they possess.  The agreement adds a layer of protection that you otherwise would not have: a restriction on the employee’s ability to harm you or to aid your competitors.

While the agreement may contain clauses that provide obligations on the employer, the main focus of the agreement is to restrict an employee’s ability in a few key areas:

Competition.  A noncompete clause restricts an employee’s right to accept employment with a competitor or start his own competitive venture. 

Solicitation.   A nonsolicitation clause is also designed to prevent a former employee from competing against you, but by limiting his ability to solicit your clients, customers or suppliers.

Disclosure of Information.  A nondisclosure clause restricts an employee’s right to divulge nonpublic or proprietary information. To be enforceable, the agreement should define what constitutes confidential information.

Hiring Current Employees.  An anti-raiding provision restricts an employee’s right to solicit current employees from leaving their employment.

Disparagement.  An anti-disparagement provision prohibits an employee from making statements that are contrary the company’s best interests or the best interests of your current executives.

In both the noncompete and nonsolicitation situations, the court will look at the reasonableness of the restrictions in deciding on whether to enforce the provisions.  Reasonableness almost always is determined by reviewing the time limit and geographic scope imposed by the covenants.  Clauses that are determined to be overly broad may be struck or reformed by a court.  Of course, a court will look at the nature of the company’s operations and industry in deciding whether any particular restriction is overbroad.

Please bear in mind that I haven’t attempted to outline every single topic that should be covered in an employment agreement.  If you are interested in reviewing a list of some of the most common employment contract provisions, just click on the link in this sentence.  The question discussed here is whether you should enter into an agreement with an employee and not what the agreement should include.

<u>The Bottom Line</u>

Companies rarely need to enter into written employment agreements with the overwhelming majority of their employees.  There are the situations, however, when a written employment agreement is not only recommended but necessary.  As always, the decision on whether to enter into a written employment agreement should be made in consultation with your employment counsel.  Drafting this type of agreement is not something that should be done in a cavalier manner, but takes thoughtful consideration and the help of an expert in the field.

 

Please let me know if I’ve missed anything that I should’ve included.  You can enter comments by clicking on the comment link below.  Thank you!

Posted by Patrick Della Valle on 08/08 at 03:17 PM
Employment Law
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