A bulletin on employment, labor, benefits, and immigration law.
Articles Discussing Labor And Employment Law In All Fifty Us States And Puerto Rico.
Employee Handbook Provision Not Enough for Enforceable Confidentiality Agreement
A New Jersey district court recently held that an employee handbook provision could not be enforced as a valid confidentiality agreement between a company and a former employee. Metropolitan Foods, Inc. d/b/a Driscoll Foods v. Kelsch [pdf] involved a former employee of Driscoll Foods (Kelsch), who was accused of soliciting orders for his new employer while still working for Driscoll. Driscoll sued Kelsch under a number of causes of action, including breach of contract.
New Wisconsin Law on Restraint and Seclusion of Pupils in Public Schools
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.
Indianaâ€™s Smoking Ban Goes into Effect July 1, 2012
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.
District Court Shows Way to Obtain Non-Solicitation Injunction in California
Companies seeking to prohibit unlawful solicitation of customers should be encouraged by a recent federal court decision.
California Public Policy Invalidates Partiesâ€™ Choice-of-Law Agreement, Federal Appeals Court Holds
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.
Public Entity May Be Vicariously Liable for Negligent Hiring, Retention and Supervision of Worker
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 Update: Changes to Law on Criminal Background Checks Effective May 4, 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.
New Jersey Court Finds Restrictive Covenants May Be Enforced Even After Employee Terminated
In a recent trade secrets case, Stryker v. Hi-Temp Specialty Metals, Inc. [pdf], a federal court in New Jersey made clear that the involuntary termination of an employee does not preclude enforcement of reasonable post-employment restrictions.
New Jersey Restores Its Exemption for Commissioned Sales Employees
As we reported earlier, the New Jersey Department of Labor and Workforce Development (DLWD)amended its wage and hour regulations in September 2011 to eliminate inconsistencies between state and federal overtime law. In so doing, the DLWD inadvertently omitted the exemption for commissioned sales employees, commonly referred to as the â€œinside salesâ€ exemption, from the amendment. The DLWDâ€™s mistake, which it acknowledged was inadvertent, potentially put employers at risk for misclassification lawsuits.
Massachusetts Employers Face New Obligations When Conducting Background Checks Involving Criminal History Records
Effective May 4, 2012, the Massachusetts Criminal Offender Record Information (CORI) Reform Act (the Act), which was enacted in August 2010 with the controversial “ban the box” legislation, will significantly change the way employers access, use, and maintain information obtained through the Commonwealth’s CORI system. The Act will allow all employers access to a new online records system, but also imposes obligations on employers that acquire criminal history information from private sources, such as consumer reporting agencies (background report vendors). Employers should review their hiring and background check policies now to determine whether any updates are necessary.
Pennsylvania Federal Court Nixes Computer Statute Claims
A recent decision from the Eastern District of Pennsylvania demonstrates that, despite allegations of employee wrongdoing and trade secret misappropriation, the facts may not support claims under some statutory computer offense laws. Even the New Jersey Computer Related Offenses Act (NJCROA), which is broader than the federal Computer Fraud and Abuse Act (CFAA), requires specific elements to support a claim. Thus, what many consider a run-of-the-mill misappropriation case will not necessarily lead to a NJCROA claim.
Court, Not Arbitrator, Decides on Unconscionability of Arbitration Agreement in California
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.
Wisconsin Legislature Passes Bill Curbing Damages under Anti-Discrimination Law
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.
Massachusetts Court Permits No-Tipping Policy
In a case of first impression, a Massachusetts Superior Court judge recently held that an employer may adopt a policy prohibiting employees from accepting tips from customers without violating the Massachusetts Tips Law. Any such policy, however, must clearly and conspicuously be announced to customers, such that a reasonable customer would understand that any money left by the customer would not be given to employees as a tip.