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ten most recent federal employment law articles Ten Most Recent Federal Articles

The Legal Forum on Employment and Labor Law (Audio)

Nexsen Pruet • August 29, 2014
Nexsen Pruet attorney Grainger Pierce appeared on the Saturday, August 16 edition of the syndicated radio program The Legal Forum. The hour-long discussion of Employment and Labor Law aired on WAVO 1150 AM in Charlotte, NC.

FMLA FAQ: Can an Employer Persuade an Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important?

Franczek Radelet P.C • August 29, 2014
Sorry I have been away for a bit. Of all things, I’ve been taking some FMLA bonding leave to care for this beauty to the right! I am excited to report that our daughter, Maggie, joined our family just a few weeks back. And I’ve been smitten ever since.

NLRB Expands the Boundaries of Employee Protest; Limits Employers’ Discipline Rights

Franczek Radelet P.C • August 29, 2014
Last week, the NLRB addressed whether, and to what extent, employees can criticize their employer in public. In MikLin Enterprises, the Board held 2-1 that a Jimmy John’s franchisee violated Section 8(a)(3) of the National Labor Relations Act (NLRA) when it disciplined employees for distributing posters which implied the franchisee’s sick leave policy would lead to customers getting sick from the franchisee’s food. The Board held MikLin supervisors further violated the NLRA when they encouraged employees, supervisors and managers to harass union supporters via social media.

NLRB Addresses the Collective "We"

Littler Mendelson, P.C. • August 29, 2014
In applying a standard Wright Line analysis of whether employee activity constitutes conduct protected by Section 7 of the NLRA, the Board, in Hitachi Capital America Corp. and Virginia Kish, 361 NLRB No. 19 (2014), has taken one of its factors to a new level. An employee was discharged for the tone of her e-mails to supervisors, which the employer concluded violated a rule prohibiting “inappropriate behavior” in the workplace.

NLRB Says “Liking” a Post on Facebook Constitutes Protected Activity

Fredrikson & Byron, P.A. • August 29, 2014
In an August 22, 2014 decision, the National Labor Relations Board (“NLRB”) held that employees engaged in protected concerted activity by posting and “liking” on Facebook, continuing the NLRB’s trend of adopting expansive interpretations of what constitutes protected concerted activity in the social media context. The case, Triple Play Sports Bar and Grille , is a cautionary tale for any employer who is considering disciplining employees over social media posts or activities.

Is the EEOC off the rails with this new “wellness” lawsuit? Don’t think so.

Constangy, Brooks & Smith, LLP • August 29, 2014
Last week, the Equal Employment Opportunity Commission filed suit against Wisconsin-based Orion Energy Systems, Inc., over its wellness program and its treatment of ex-employee Wendy Schobert, who was not a fan of the program. The lawsuit contends that the program’s health risk assessment is an unlawful “medical examination” and that the company retaliated against Ms. Schobert for failing to have a positive attitude about it. Both the medical examination and the retaliation, says the EEOC, violate the Americans with Disabilities Act.

DOJ Demonstrates Continued Focus on FCA Claims against Healthcare Entities

Littler Mendelson, P.C. • August 29, 2014
In 2009, Attorney General Eric Holder and Former U.S. Department of Health and Human Services Secretary Kathleen Sebelius created an interagency task force, the Health Care Fraud Prevention and Enforcement Action Team (HEAT), to increase coordination and optimize criminal and civil enforcement. According to the U.S. Department of Justice, the task force yielded historic results resulting in the recovery of $12.1 billion from January 2009 through September 2013. Of that amount, the DOJ claims it recovered more than $2 billion each year for healthcare fraud, reaching $2.6 billion in 2013. In 2014, this trend has continued with two Florida hospitals settling FCA claims with the DOJ last spring for $85 million and $7 million and another two healthcare entities recently settling with the DOJ for $2.2 million and $35 million.

Executive Labor Summary (July - August 2014)

Constangy, Brooks & Smith, LLP • August 28, 2014
NLRB extends Weingarten right of union representation to drug and alcohol test situations "Petitioned-for" bargaining units at department stores get a mixed reception from the Board NLRB decides not to take a chance on Supreme Court review of its position on class action waivers in arbitration agreements

Under the FLSA, a Day Late is a Dollar Short [Wage & Hour FAQ]

Franczek Radelet P.C • August 28, 2014
From time to time, we hear from employers that ask us about the consequence of delaying payroll because of cash flow.

Most Convenient Forum is State of Company Headquarter, Judge Finds in Collective Action

Jackson Lewis P.C. • August 28, 2014
For the convenience of the parties and witnesses and in the interest of justice, the plaintiff’s collective action under the Fair Labor Standards Act should be transferred from the District Court for the District of Tennessee to the District Court for the District of New Jersey, the state where the employer is headquartered, a Tennessee Magistrate Judge has decided. Dantes v. Indecomm Holdings, Inc., d/b/a Indecomm Global Services, No. 1:13-CV-1290-JDB-egb, 2014 U.S. Dist. LEXIS 115348 (W.D. Tenn. Aug. 11, 2014). U.S. District Judge J. Daniel Breen adopted the Magistrate Judge’s recommendation and ordered the case transfer on August 19, 2014.

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Some Labor Day eye candy
Constangy • September 2, 2014

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