In a case brought by insurance agents, the California appeals court has ruled that an employer may not unilaterally eliminate certain obligations to employees contained in a policy that did not have an indefinite duration. McCaskey v. California State Auto. Ass’n, No. H032186 (Cal. Ct. App. Oct. 29, 2010). Reversing summary judgment for the employer, the Court held that a triable issue of fact existed regarding the duration of the policy and allowed the case to proceed to trial.
Articles Discussing Labor And Employment Law In All Fifty Us States And Puerto Rico.
Debate Brewing on Effective Date of Georgia’s New Non-Compete Law.
Even though Georgia’s voter-approved constitutional amendment for a sweeping new restrictive covenant law said it would take effect upon ratification, a debate has been developing in the state over whether that is the effective date. (For more information on the new law, see our article, Georgia Voters Approve New, Employer-Friendly Non-Compete Law.)
Massachusetts Commission Against Discrimination on New Criminal Background Check Law.
Massachusetts’ new law on criminal offender record information (“CORI”) bans the use of questions about criminal history on an “initial written application” for employment. This ban became effective November 4, 2010. The Massachusetts Commission Against Discrimination (MCAD), charged with enforcement, has issued a Fact Sheet on how it intends to enforce the law. While the Fact Sheet does not have the force of a regulation or law, it provides valuable guidance for employers.
New Jersey Supreme Court Holds Pay Discrimination Claim Timely Although Act Occurred Beyond Limitations Period
The New Jersey Supreme Court has held that a wage claim may be timely even though the alleged discrimination occurred outside the New Jersey’s Law Against Discrimination’s two-year statute of limitations. Alexander v. Seton Hall Univ., No. A-87-09 (Nov. 23, 2010). According to the Court, this is because each alleged discriminatory paycheck is a separate act, re-starting the limitation period. The Court, however, limited the plaintiffs’ damages to the two-year period from the date they filed their complaint.
New Jersey Supreme Court Upholds Employee’s Pilfering Confidential Employer Records in Discrimination Suit.
The New Jersey Supreme Court has ruled 5-2 that an employee who engages in self-help and circumvents the pretrial discovery process by secretly copying her employer’s records for use in a discrimination lawsuit may be insulated from discipline and/or termination. The Court’s decision in Quinlan v. Curtiss-Wright Corp., No. A-51-09 (Dec. 2, 2010), adopting a totality-of-circumstances approach, gives employees who believe they were discriminated against more legal protections than ever while making it more difficult for employers to respond to employee misconduct.
Minnesota Court Denies Unemployment Benefits, Says Misrepresentation in Hiring Process is Misconduct.
In good news for employers, the Minnesota Court of Appeals has clarified that “employment misconduct” includes a misrepresentation made during hiring and affirmed the denial of unemployment benefits. Santillana v. Central Minnesota Council on Aging and Minnesota Dep’t of Employment and Econ. Dev., No. 23466835-3 (Minn. Ct. App. Nov. 30, 2010). Under Minnesota law, an employee who is discharged for employment misconduct is ineligible from receiving unemployment benefits.
California Court Allows Employer’s Defamation Lawsuit to Proceed against Protestors.
An employer’s defamation lawsuit against protesters who wrongly accused it of racially motivated firings could proceed, the California Court of Appeal has ruled in an unpublished opinion. Overhill Farms Inc. v. Lopez, No. G042984 (Cal. Ct. App. Nov. 15, 2010). Affirming the denial of the protestors’ motion to dismiss the employer’s complaint, the Court rejected their argument that the accusations were a form of protected expressions of opinion. Instead, the Court found the protestors’ statements were factual assertions that the employer could challenge. The Court further ruled that Section 425.16 of the California Civil Code, commonly known as the “anti-SLAPP” law, did not preclude the employer’s defamation claim.
California Court Rules State Law Allows Cashier Not Given Suitable Seating to Pursue Civil Penalty Claim
Employers in California may be at risk for significant penalties under California’s requirement that employees be provided with “suitable seating,” under a ruling of a state appeals court in Bright v. 99¢ Only Stores, No. B220016 (Cal. Ct. App. Nov. 12, 2010). The case was brought under state Industrial Welfare Commission (“IWC”) Wage Order No. 7-2001(14), specifying the requirement, and the Labor Code’s Private Attorneys General Act (“PAGA”), which permits aggrieved employees to sue for civil penalties for a violation of the state Labor Code.
Arizona Voters Pass Medical Marijuana Proposition
By a margin of just 4,341 votes, Arizona voters decided to make their state the fifteenth to allow the use of medical marijuana. The “Yes” vote on Proposition 203 had trailed for nearly a week following Election Day, but made a surprising comeback as absentee and provisional ballots were counted. The measure was opposed by the Arizona Chamber of Commerce and other business groups.
What Louisiana Election Results Mean for Employers
Labor & Employment attorney H. Mark Adams has authored an article on the impact the recent general elections will have on Louisiana employers.
D.C. Issues Mandatory Poster under Accrued Sick and Safe Leave Act.
The District of Columbia Department of Employment Services (DOES) has issued its long-awaited poster under the D.C. Accrued Sick and Safe Leave Act (SSLA). The poster comes four months after the agency issued final rules under the D.C. paid leave law, which was passed in 2008.
Georgia Voters Approve New, Employer-Friendly Non-Compete Law
This Election Day, joining the majority of states, Georgia became a state where restrictive covenants should be regularly enforced. Voters in Georgia approved a constitutional amendment permitting a new restrictive covenant law to take effect immediately. The new law is a sweeping change for the state. For the first time, Georgia has a law that identifies specific language necessary for enforceability, identifies the types of individuals and entities that can be parties to covenants, allows courts to “blue pencil” covenants, creates an undue hardship exception to the enforcement of covenants, and removes time restrictions on the protection of confidential information.
California Court Rules Arbitration Agreement Unconscionable, Company Didn’t Give Employee AAA Rules
Showing continued hostility toward employee arbitration agreements, the California Court of Appeal has struck down as unconscionable an arbitration agreement because the employer failed to provide the high-level employee a copy of the arbitration rules referenced in the agreement.
Washington Minimum Wage Goes Up in 2011
Washington’s minimum wage, currently the highest in the nation, will increase to $8.67 an hour effective January 1, 2011, an increase of 12 cents over the 2010 rate. The state minimum wage applies to agricultural and non-agricultural jobs in Washington, including tipped employees, as Washington’s minimum wage law does not recognize a tip credit.
New York State Construction Industry Fair Play Act Effective.
Under the New York State Construction Industry Fair Play Act, effective October 26, construction workers are presumed to be employees, and must be treated as employees, as opposed to independent contractors, unless they meet three criteria. The new section to the New York Labor Law takes aim at worker misclassification in the construction industry. After signing the legislation, Governor David Paterson said, “Studies have shown that up to 15 percent of New York’s construction industry is misclassified at any given time. It deprives the government of tax revenue at a time when it is sorely needed and places an unfair burden on law-abiding employers who play by the rules. It often deprives New York’s workers of crucial benefits such as overtime pay, workers’ compensation and unemployment insurance. This new law will be a powerful tool that hopefully will clean up this practice once and for all.”