The Municipal Council of the City of Newark, New Jersey has passed a new ordinance designed to help individuals with criminal convictions find employment within the City of Newark. This ordinance, effective November 18, 2012, is different from many other cities’ ban-the-box ordinances in that it covers all private sector employers with five or more employees and doing business, employing persons, or taking employment applications within the City of Newark. The ordinance also applies to the rental, lease or sublease of real property and licensing by the City.
Articles Discussing Labor And Employment Law In All Fifty Us States And Puerto Rico.
Reconsidering and reversing its own decision, the Ohio Supreme Court now has decided an acquiring company in a merger could enforce employee non-compete agreements as if it had stepped into the shoes of the acquired company despite the absence of clear contract language to that effect. The Court, on May 24, 2012, in Acordia of Ohio L.L.C. v. Fischel (“Acordia I”), had answered that the agreements could not be enforced by the merged entity post-merger. Then, after agreeing on July 25th to take another look at the case, the Court on October 11th reversed its position, explaining it misread an earlier court decision regarding corporate mergers. Slip Opinion No. 2012-Ohio-4648 (“Acordia II”).
In a rare procedural move, the Ohio Supreme Court reconsidered and reversed its May 24, 2012 decision in Acordia of Ohio, L.L.C. v. Fishel, 2012-Ohio-2297 (“Fishel I”). At issue was the enforceability of restrictive covenants in employee noncompete agreements subsequent to a merger. In Fishel I, affirming the decisions of the lower courts, the Ohio Supreme Court held that all assets and property, including employment contracts and agreements, transferred through operation of law to the resulting company post-merger. The merged company, however, was precluded from enforcing its predecessor’s noncompete agreements because the agreements did not contain language that extends to others, such as the company’s “successors or assigns,” and the noncompete agreements had expired as to all the employees involved.
Owner-operator truck drivers were not required to arbitrate whether they were misclassified as independent contractors in violation of the California Labor Code, where each of the parties’ arbitration agreements applied to any dispute that arose “with regard to its application or interpretation,” the California Court of Appeal has held. Elijahjuan v. Superior Court, No. B234794 (Cal. Ct. App. Oct. 17, 2012). The Court found the drivers’ statutory claims fell outside of the agreements’ scope and reversed the trial court’s order compelling arbitration. The dissenting Justice took issue with the majority’s narrow reading of the arbitration agreements, noting that it “ignored well-settled law favoring arbitration.”
Effective November 18, 2012, most employers that operate in Newark, New Jersey must comply with a new ordinance1 broadly restricting their discretion to rely on criminal background records for employment purposes.
In New York Workers’ Compensation Case No. 00427749, the claimant, a driver, sustained injuries to her back, neck, right shoulder, face, and right thumb when she was rear-ended by a van in 2004. In addition to underscoring the requirements a claimant must meet to be classified with a permanent total disability, the proceedings that ensued in this case provide carriers and employers with an important defense against claimants’ physicians who do not properly investigate the true capabilities and daily lives of claimants.
The Rhode Island Department of Health now requires seasonal flu vaccines for all health care workers, including volunteers, who have direct patient contact. Health care workers may obtain a medical exemption from the requirement. Health care workers also may refuse to be vaccinated, but they must provide written notice of their refusal to their employer prior to December 15th of each year. However, during any declared period of widespread flu outbreak, unvaccinated workers must wear surgical facemasks whenever they have direct patient contact, or face a fine. The Service Employees International Union New England, No. 1199, which represents health care workers in Rhode Island, has objected to the new vaccination requirement as a violation of the rights of providers and is considering whether to challenge it.
Executive Summary: On September 27, 2012, two members of the New Jersey Assembly introduced Assembly Bill 3310, which authorizes the New Jersey Department of Labor and Workforce Development (NJDOL) to investigate, mediate and prosecute claims by certain independent contractors that they were not properly paid in their transactions with businesses and non-profits. The bill imposes additional record-keeping requirements on businesses and non-profits that contract with certain independent contractors and establishes civil and criminal penalties for violations of the law. If passed, this law would create a minefield for all businesses and non-profits in New Jersey who use independent contractors and could severely hurt New Jersey sole proprietors.
After a series of alleged incidents reported in the news media of employers (principally public employers) requesting or requiring access to employees’ or applicants’ personal social media accounts, legislators around the country rushed to introduce legislation in response to the public outcry. Maryland and then Illinois enacted the country’s first two “password protection” laws. On September 27, 2012, California Governor Jerry Brown signed into law the nation’s third such law that generally prohibits employers from requiring or requesting that an employee or applicant provide access to personal social media content. Unlike the Illinois and Maryland laws, however, California’s law embodies a more balanced approach, taking into account employers’ legitimate business interests. It is effective January 1, 2013.
A bulletin on employment, labor, benefits, and immigration law.
California Governor Jerry Brown recently signed into law AB 2492, amending California’s False Claims Act to better conform it to requirements of the federal False Claims Act.1 In addition to amending definitions of “conduct” that would fall under the provisions of the new law, civil penalties are also increased for each violation. The new changes also make it easier for employees who themselves violate the Act to file suit against an employer based on the employee’s prohibited conduct and be awarded a share of the proceeds of the action. Courts can, however, reduce the award based on the employee’s conduct.
Governor Cuomo signed into law amendments to Article 193 of the New York Wage Deduction Law which will permit employers to take additional lawful deductions from employees’ paychecks. The law will take effect on November 8, 2012.
An employee who was terminated after testing positive for marijuana (which he obtained and used pursuant to Michigan’s medical marijuana law) has stated no legal claims against his employer, the U.S. Court of Appeals for the Sixth Circuit has ruled. Casias v. Wal-Mart Stores, Inc., No. 11-1227 (6th Cir. Sept. 19, 2012). The Court affirmed dismissal of the plaintiff’s wrongful discharge case against the employer.
New Jersey may soon join the ranks of other states that prohibit or seriously limit an employer’s right to request a current employee or applicant’s password, username, or similar information to social media websites such as Facebook. Unfortunately, the proposed New Jersey legislation as currently written will provide applicants and current employees with a potential new cause of action to assert against companies.
Ruling a recruiter was a commissioned salesperson because his job involved sales and his compensation was based on those sales, the California Court of Appeal, Fourth Appellate District, has rejected an employee’s claims for unpaid overtime and meal period premium pay against his employer on behalf of himself and a class of current and former employees. Muldrow v. Surrex Solutions Corp., No. D057995 (Cal. App. 4th Dist. Aug. 29, 2012). The Court found the employees were subject to California’s commissioned employee exemption and affirmed the judgment in favor of the employer.