The Ohio Supreme Court has recognized a limited exception to the state’s general rule that a discharged employee must notify his former employer within 90 days of termination of the employee’s intent to file a retaliatory discharge lawsuit under Ohio’s workers’ compensation act (R.C. 4123.90). Resolving a conflict among the state’s appellate courts, it held that courts may delay the running of the 90-day notification period if the employee did not know that he had been discharged “within a reasonable time” after the employment action. Lawrence v. Youngstown, Slip Opinion No. 2012-Ohio-4247 (Sept. 20, 2012). The case now returns to the lower court for further proceedings.
Articles Discussing Labor And Employment Law In All Fifty Us States And Puerto Rico.
Executive Summary: On Friday, September 21, 2012, New Jersey Governor Chris Christie signed into law a “Gender Pay Parity” bill that imposes a new notice posting requirement on covered employers. The governor rejected a second bill that would have increased reporting requirements for public contractors and sent the remaining two bills back to the legislature with significant amendments.
In a much-anticipated ruling, the Connecticut Supreme Court has held that employers in Connecticut are not subject to the provisions of the Connecticut Family and Medical Leave Act unless they employ at least 75 employees within the state. Velez v. Commissioner of Labor, et al., Nos. SC 18683 & 18684 (Sept. 25, 2012). The decision has broad implications for employers in Connecticut.
California’s statutory ban on non-competes contains an exception for covenants given in connection with the sale of a business and its goodwill. The exception in California Business and Professions Code section 16601 (the “16601 exception”) was created to protect a buyer’s interest in enjoying the goodwill it purchased free from competition by the seller. With limited case law interpreting the exception, buyers often struggle with the question of how to best protect themselves against later competition from a seller who initially accepts post-closing employment with the buyer – must the restriction be tied to the closing date and the products and customers in place on that date or can it be tied to the employee’s later departure from the new entity and include post-closing products and customers? A recent decision from the California Court of Appeal, Fourth District, provides some guidance for those trying to draft enforceable covenants.
Explaining that whether sexual harassment occurred is a legal determination under the Minnesota Human Rights Act, the Minnesota Court of Appeals has reversed a trial court’s dismissal of three employees’ suit for hostile work environment against their employers. Rasmussen v. Two Harbors Fish Co., No. A11-2178 (Minn. Ct. App. July 23, 2012).
California Governor Jerry Brown has signed into law a bi-partisan measure that seeks to curb rampant, frivolous Americans with Disabilities Act access lawsuits in the state and expand access to businesses for those with disabilities. This is good news for California businesses. The state reportedly has 12 percent of the country’s disabled population, but 40 percent of the nation’s ADA lawsuits.
California Governor Jerry Brown has signed “The Workplace Religious Freedom Act of 2012” (WRFA) into law. The new law amends the religious discrimination portions of the California Fair Employment and Housing Act (“CFEHA”) to include more stringent religious accommodation requirements for employers with workers in California. The law, signed on September 8, 2012, will take effect on November 1, 2013.
Executive Summary: Two new amendments to New York General Business Law Section 399-dd, commonly known as the Social Security Number Protection Law, have been passed for the purpose of further safeguarding employees’ social security numbers. Signed into law by Governor Andrew Cuomo on August 14, 2012, the first change becomes effective on November 12, 2012, while the effective date for the second change is December 12, 2012. The two amendments will be codified as Section 399-ddd.
In the latest decision concerning service charges and tips in the hospitality industry, the Maine Supreme Court recently addressed whether banquet wait staff may share a “service charge” paid by customers with other employees under Maine law without violating Maine’s tip credit statute. In Hayden-Tidd v. The Cliff House & Motels, Inc., the plaintiff, a former banquet server, appealed summary judgment dismissing her putative class action, which alleged that the employer violated Maine law by not paying her and her fellow servers the entire mandatory “service charge” assessed to customers when the employer instead shared the service charge among other banquet employees. The Maine Supreme Court held that the employer’s practice did not violate Maine law.
In a long-awaited ruling, the California Supreme Court held in April 2012 that employers need not ensure that their workers take meal and rest periods required by California law, but only that workers are provided the breaks. One effect of Brinker Restaurant Corp. v. Superior Court, welcomed by many California employers, was to make it harder for plaintiffs to get classes certified. Several meal-and-rest-period cases were returned to the state Courts of Appeal for reconsideration in light of Brinker. Thus far, the courts have affirmed dismissal of claims for meal-and-rest period violations in one case (Muldrow v. Surrex Solutions, Inc., No. D057955 (Cal. Ct. App. Aug. 29, 2012)) and affirmed denial of class action certification for such violations in two cases (Hernandez v. Chipotle Mexican Grill, Inc., B216004 (Cal. Ct. App. Aug. 30, 2012), and Lamps Plus Overtime Cases, No. B220954 (Cal. Ct. App. Sept. 5, 2012)).
In a pair of recent decisions, the United States District Court for the Western District of Pennsylvania held that the “fluctuating workweek” method of calculating overtime is not lawful under Pennsylvania law when the employer pays an overtime premium of one-half of the employee’s regular hourly rate, in addition to the employee’s salary. Foster v. Kraft Foods Global, Inc., 2012 U.S. Dist. LEXIS 121282 (W.D. Pa. Aug. 27, 2012); Cerutti v. Frito Lay, Inc., 777 F. Supp. 2d 920 (W.D. Pa. 2011). While these cases do not necessarily represent the last word on the subject (indeed, the Foster case is still pending in district court), employers who utilize the fluctuating workweek method in Pennsylvania should take note of these developments.
Expanding the scope of permissible deductions from wages under New York law, Governor Mario Cuomo, on September 7, 2012, has signed legislation amending New York Labor Law §193. This change was in reaction to a strict position taken by the New York State Department of Labor in recent years severely limiting the types of permissible deductions — essentially prohibiting any deductions not specifically set forth in pre-amendment Section 193. The amendment goes into effect on November 6, 2012, 60 days after it becomes law, and, unless extended, will expire and be deemed repealed three years after the effective date.
On August 22, 2012, Governor Beverly Perdue issued Executive Order 125 establishing a task force to address concerns that North Carolina employers are allegedly misclassifying employees as independent contractors to avoid obligations under federal and state laws, including laws governing wage and hour issues. According to the Order, the primary purposes of the “Task Force on Employee Misclassification” are “to enhance coordination and communication among various state agencies,” and “to identify effective mechanisms to combat unlawful practices like employee misclassification that harm workers.” The Task Force will be chaired by the Commissioner of Insurance and include heads of various state agencies, or their designees, and representatives of other entities with expertise on these issues, such as the Commissioner of Labor.
A Connecticut state court recently found non-compete/non-solicitation agreements unreasonable and therefore unenforceable because the agreements did not protect any legitimate business interest. Creative Dimensions, Inc. v. Laberge is an unusual case in that the court found the agreements were reasonable in terms of their geographical and temporal restrictions, but nevertheless invalidated the agreements because they were inherently unfair to the employee-defendants. In reaching this conclusion, the court balanced the employee-defendants’ inability to work for 18 months against the employer’s failure to identify a protectable interest justifying the 18-month restriction.
In a significant victory for trucking companies operating in California, a superior court judge decertified a class of California truck drivers who challenged the legality of compensating drivers on a “combined” piece rate that covers both driving and non-driving duties, when compensation for the “piece” is based generally on the number of miles driven. The decertification order in Carson v. Knight Transportation is particularly significant not only because it is the first state-court order addressing the legality of a combined piece rate, but also because three federal courts in the Northern and Central Districts of California concluded that such a combined piece rate runs afoul of California’s law prohibiting the “averaging” of hours worked.