Legality of Criminal Background Checks in Hiring Process; Mandatory E-Verify in North Carolina; “Manifest Disregard for the Law” as Challenge to Arbitration Award; Jackson Lewis News; Educational Opportunities
The first law in the nation to prohibit discrimination against job applicants who are unemployed has been enacted in the District of Columbia.
In welcome news for many California employers facing class actions based on the state break rules, the California Supreme Court has held that employers need not ensure that their workers take meal periods required by California law, but only that workers are provided the meal periods. The employer’s obligation “is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done,” the Court explained. Brinker Restaurant Corp. v. Superior Court (Hohnbaum), No. S166350 (Calif. Apr. 12, 2012). Should the employee choose to work after being relieved of duty, however, he or she must receive pay for the time worked, but is not entitled to the one hour of premium pay under California law for working during a meal break.
Add Nebraska to the growing number of states that have granted civil immunity to employers that provide job references to prospective employers of their current or former employees. Approved by Nebraska Governor Dave Heineman on April 10, 2012, the law, LB 959, will take effect on July 18, 2012.
The City of Omaha has joined many other major American cities in barring discrimination based on sexual orientation and gender identity. The Omaha City Council, by a 4-3 vote, approved an ordinance extending protections to gay, lesbian, bisexual and transgendered persons. Mayor Jim Suttle signed the ordinance into law, which went into effect March 28. The amendment to Omahaâ€™s equal employment opportunity ordinance prohibits employers, employment agencies, job training programs, labor groups, public accommodations and businesses that contract with the City from discriminating against an individual on the basis of sexual orientation and gender identity.
Under a bill passed by both houses of the Maryland General Assembly, employers in Maryland would be prohibited from demanding from employees and job applicants the usernames, passwords or other means to access personal accounts or service through an electronic communication device (e.g., computer and phone) for social media sites such as Facebook and LinkedIn. The bill, S.B. 433, introduced by Senator Ronald Young, passed unanimously in the Senate and by a vote of 128-10 in the House. It is awaiting the signature of Governor Martin Oâ€™Malley. It would become effective October 1, 2012.
A bulletin on employment, labor, benefits, and immigration law.
A measure that provides specific guidance on the use of seclusion and physical restraint of pupils in Wisconsinâ€™s public schools has been signed into law by Wisconsin Governor Scott Walker. Under the new law, which takes effect on September 1, 2012, the use of seclusion or physical restraint is prohibited, unless the childâ€™s behavior presents a â€œclear, present, and imminent risk to the physical safety of the pupil or others.â€ In addition, such measures must represent the â€œleast restrictiveâ€ intervention and may last only as long as reasonably necessary to resolve the problem.
Indiana has become the 40th state in the country to enact a statewide ban on smoking in places of employment. The ban, signed by Governor Mitch Daniels on March 19, 2012, prohibits smoking in public places, places of employment, and government vehicles. The new law will become effective on July 1, 2012. Individuals and establishments found in violation of the law can be fined or be subjected to a civil action brought by designated entities. IC 7.1-5-12 et seq.
A Georgia choice-of-law provision in a contract entitled, â€œIndependent Truckmanâ€™s Agreement,â€ between California truck drivers and a Georgia company was unenforceable based on California public policy, the federal appeals court in San Francisco has held. Ruiz v. Affinity Logistics Corp., 667 F.3d 1318 (9th Cir. 2012). The Court also ruled that California law applied in determining whether the drivers were employees or independent contractors. Vacating the lower courtâ€™s judgment in favor of a Georgia transportation company in a wage-hour class action suit, the Court remanded the case to the lower court for further proceedings to determine whether the drivers were employees or independent contractors.
Reversing dismissal of a complaint against a California school district, the California Supreme Court has held that a public school district could be held vicariously liable for the negligence of supervisory or administrative personnel who allegedly knew or should have known of a school guidance counselorâ€™s propensity toward sexual molestation, but hired, retained and inadequately supervised her. C.A. v. William Hart Union High Sch. Dist., No. S188982 (Cal. Mar. 8, 2012).
Massachusetts employers will be faced with a host of new obligations affecting their ability to obtain and use criminal background information from applicants and current employees beginning May 4, 2012. The stateâ€™s 2010 criminal offender record information (“CORI”) law created a new method and database for employers to access criminal records, allowing many employers access to the database for the first time.
As an employee reaches retirement age, he may want to retire or cease working full-time. The employer, however, may need or want the employee to continue to work temporarily or on a part-time basis. The employee wants to begin to receive his pension plan payments. A frequent question in this scenario is, â€œCan we employ the participant part-time or for a few more months, but begin the employeeâ€™s pension payments?â€
Denying an employerâ€™s request to arbitrate an employeeâ€™s discrimination, harassment, and wage-related claims, the California Court of Appeal has held that courts, not arbitrators, had the power to decide whether an arbitration agreement was unconscionable. This is so even where an agreement is so broadly worded as to suggest that an arbitrator might have such authority. Ajamian v. CantorCO2e, L.P., No. A131025 (Cal. Ct. App. Feb. 16, 2012). The Court went on to find the arbitration agreement in question was unconscionable and unenforceable. It also ruled the trial court did not abuse its discretion in declining to sever the offending terms from the agreement.
A bill has been passed by both houses of the Wisconsin legislature that would repeal the right of successful complainants to receive an award of compensatory and punitive damages in circuit court under the Wisconsin Fair Employment Act. Senate Bill 202, introduced September 27, 2011, was passed by the Senate on November 3, 2011, on a straight party-line vote of 17-16. The bill was passed by the Assembly on February 21, 2012, by a vote of 60-35. Wisconsin Governor Scott Walker is expected to sign the bill.