CA Court Finds Arbitration Agreement with Modification Provisions to be Illusory

The California Court of Appeals recently found an employer's arbitration agreement to be "illusory" because it contained a modification provision which stated that the employer had the right to amend, modify, or revoke the arbitration contract on 30 days' written notice, and at the end of the 30-day period, a contract change applies to any claim that has not been filed with the American Arbitration Association. More ›

Ninth Circuit Finds “Attendance” to be Essential Function of Nurse’s Job

The Ninth Circuit recently determined that for a neo-natal intensive care unit nurse, attendance is an essential function of the job. The hospital at which the nurse worked had an attendance policy wherein employees could take up to five unplanned absences during a rolling twelve-month period, and unplanned absences related to family medical leave . . . jury duty, bereavement leave and other approved bases are not counted towards this limit, and each absence, however long, counts as only one occurrence. More ›

D.C. Circuit Court also Rules on NLRB Posting Requirement

Yesterday we reported to you that the South Carolina District Court struck down the NLRB's posting rule which would have been effective as of April 30, 2012. Just this morning, the Court of Appeals for the District of Columbia Circuit (where a similar NLRB-challenge was pending) issued an injunction enjoining the posting requirement pending the outcome of an appeal.   More ›

South Carolina Court Strikes down NLRB Posting Rule

Up until December, 2010, the National Labor Relations Board (“NLRB”), unlike most federal labor agencies, did not require employers to post a general notice of employee rights in the workplace. That changed, however, upon issuance of a proposed rule wherein all employees subject to the National Labor Relations Act (“NLRA”) would be required to post notices which informed employees of their rights under the NLRA. The final rule was ultimately published in August, 2011, and the requirements were set to take effect on April 30, 2012. The Chamber of Commerce of the United States and the South Carolina Chamber of Commerce sought an injunction to prevent the implementation and enforcement of the rule. The U.S. District Court for the District of South Carolina agreed with the Chambers, finding that the Board, in promulgating the final rule, exceeded its authority in violation of the Administrative Procedure Act. You can read the decision here.   More ›

Updated: Supreme Court to hear Arguments on Outside Salesperson Exemption

Today, the U.S. Supreme Court will hear oral arguments on whether GlaxoSmithKline PLC's offsite and travelling drug sales representatives are entitled to overtime pay. In the past, these representatives have been deemed "exempt" as outside salespeople and not eligible for overtime. Specifically, the Court is presently considering: More ›

Georgia Court Evaluates Executive Exemption Under FLSA

When is a store manager truly a manager, and not just a lead hourly employee, for purposes of the executive exemption of the Fair Labor Standards Act? Employers recently received some positive guidance from the South Carolina district court in Gooden v. Dolgencorp, Inc., 3:10-cv-1059, Dkt. 60, (U.S.D.C. So. Car. Ap. 3, 2012) and Thomas v. Dolgencorp, Inc., 3:10-cv-1061, Dkt. 59, (U.S.D.C. So. Car. Ap. 3, 2012). More ›

CA Supreme Court Issues Long Awaited Ruling on the Taking of Meal Periods

Today, after over three years, the California Supreme Court issued its ruling in the infamous Brinker v. Superior Court case, which addresses, among other things, an employer's obligation to "provide" employees with meal and rest breaks.

Stay tuned.... our evaluation of this momentous decision will follow.

Ninth Circuit: Employees do not Violate the CFFA when Violating Computer use Restrictions

The Ninth Circuit Court of Appeals recently issued an opinion concerning employee violations of the Computer Fraud and Abuse Act. More ›

Maryland: Employers Cannot Demand Applicants’/Employees’ Social Network Passwords

Maryland is the first state to pass legislation which bans employers from asking for current and prospective employees' passwords to social media sites. The legislation passed the General Assembly and is now waiting to be signed by the Governor. The demand for such legislation is not limited to Maryland. Senators from New York and Connecticut have asked the Department of Justice and the EEOC to investigate this particular practice, which has become more and more common with employers of late. Illinois and California presently have similar legislation pending.

Conducting checks into employees' and prospective employees' backgrounds is very common, yet can be very risky. Before delving into your applicants'/employees' social networking backgrounds, consult with counsel to determine whether your methods are appropriate and compliant with local, state, and federal law. 

Caucasian School Board Employee Successful in Race Discrimination, Constructive Discharge Claims

A Caucasian finance coordinator for a school district was reassigned to a position of food services assistant after the racial majority of the Board changed in an election. The employee then took sick leave, and while on leave, requested that the Board provide her with information concerning her new job duties and requested a new contract. The Board provided neither. After being on leave for roughly ten months, the superintendent notified the employee that he was recommending her termination given that she had exhausted her sick days. The employee then provided a doctor's note indicating her ability to return to work. She was told she would have a contract for the food services assistant position when she returned, but the Board failed to provide the contract or any information concerning the new job role. Within weeks, she resigned her position and filed suit alleging race discrimination, hostile work environment, and constructive discharge pursuant to Title VII. The race discrimination and constructive discharge claims proceeded to jury trial, as did the employee's request for punitive damages. The jury found that the demotion from finance coordinator to food services assistant was an adverse employment action which was based on race, and that she was effectively forced out of her position due to race, and awarded her $70,825. She was also awarded punitive damages against the individual Board members. The Board moved to set aside the jury's verdicts, and the Court agreed, leaving only the $10,000 award of compensatory damages in tact. The employee appealed. The Eighth Circuit Court of Appeals agreed with the employee, in part, in finding that the evidence presented was sufficient to permit a reasonable jury to conclude that the change in position was a demotion with diminution in title and significantly decreased responsibilities, and could be found demeaning and thus support a claim for constructive discharge. The Appellate Court's role was to determine whether there was a complete absence of probative facts to support the jury's verdict, and the Court could not say that there was. The jury's verdict was reinstated, but the issue of punitive damages was remanded back to the trial court so that the jury could be properly instructed regarding the affirmative defense of "ignorance" of the law before determining any award. More ›