ObamaCare’s Whistleblower Protections go into Effect

Though President Obama and Congress established broad requirements in the Affordable Care Act (aka ObamaCare), they tasked federal agencies with filling in myriad blanks regarding implementation. The agency rules that are emerging, often with little fanfare, can have an enormous effect on how the law operates in the real world.

One important rule regarding the handling of retaliation complaints became effective this week. More ›

Who is an employee and who is an independent contractor under the employer mandate provisions of the Affordable Care Act (ObamaCare)?

As we have written in this space in the past, whether a worker is an employee or an independent contractor can have many consequences.  The classification can determine whether the principal is liable for the negligent acts of the worker, whether the worker may sue for wrongful termination or discrimination, is entitled to workers’ compensation insurance, is subject to tax treatment as an employee, and a lot more.

Now, the Affordable Care Act (aka ObamaCare) has added still more consequences.  Among other things, as reported in the Wall Street Journal, the Affordable Care Act requires firms with 50 or more “full-time equivalent workers” to offer health plans to employees who work the requisite number of hours per week, or else pay a $2,000 penalty for each uncovered worker beyond 30 employees. The Wall Street Journal reports that many businesses have been moving full-time employees to part-time positions in an effort to avoid the mandate. More ›

Exhaustion of Leave Under the Pregnancy Disability Leave Law does not Prevent an Employee from Making a Claim Under the FEHA, Court of Appeal Rules

In Sanchez v. Swissport, the California Court of Appeal, Second Appellate District, determined that an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL), Gov. Code 12945, can also state a cause of action under the California Fair Employment and Housing Act (FEHA), Gov. Code 12900 et seq. More ›

Employers may not Engage in Coercive Surveillance of Unions

An employer risks violating federal labor laws by monitoring employees’ union activities, or even creating an impression of surveillance.

Whether an employer’s union monitoring is considered coercive, and therefore illegal, depends on several factors, including the duration of the observation, the employer’s distance from employees while observing them and whether the employer engaged in other coercive behavior during the observation. See Aladdin Gaming LLC, 345 NLRB 585, 586 (2005).

A National Labor Relations Board (NLRB) judge held that an employer had violated the prohibition against coercive surveillance in the recent case Allied Medical Transport, Inc. and Transport Workers Union of America, AFL-CIO. Allied Medical Transport, Inc. (“AMT”) provides transportation services to disabled Florida residents who are unable to use public transportation. More ›

School Principal Lacks free Speech Claim as Work-Related Complaints not Made as Private Citizen

A new middle school principal questioned her predecessor about certain expenditures made using the school credit card. The following year, the principal was placed on a performance improvement plan, and was later advised that the school was contemplating terminating her contract. The principal filed a police report claiming the predecessor misused school funds, and also sent letters regarding the same matter to the superintendent and other school officials. A hearing was held, and the district board voted to terminate the principal's contract. She then sued, alleging breach of contract and violations of 42 USC 1983, claiming that she was retaliated against for engaging in activities which were protected under the First Amendment. The district court granted summary judgment in favor of the district and the principal appealed. The Seventh Circuit Court of Appeals affirmed, finding that "in order for a public employee to raise a successful First Amendment claim for her employer's restriction of her speech, the speech must be in her capacity as a private citizen and not as an employee." In this case, however, the principal was speaking as a public employee when she lodged complaints against her predecessor, and was speaking about matters which were directly within her oversight as the principal. The Court similarly found that her breach of contract claim could not withstand because the contract language itself specifically stated that the district could terminate her for whatever reason after one year, as long as she was provided severance for the remaining year. The distinction between public and private speech can be a critical part of a public employer's defense against an employee's retaliation claim. This case also reminds employers of the importance of including specific language about at will or for cause termination in employment contracts.

Seventh Circuit Decertifies Class due to Individualized Damage Calculations

The Seventh Circuit Court of Appeals recently issued an opinion upholding a district court’s de-certification of a collective and class action under the Fair Labor Standards Act and Illinois state wage laws. While the opinion did not deal with typical Rule 23 or Section 16 issues, such as commonality or a common employer policy, it is a positive case for employers trying to get out from under lengthy, expensive class litigation. More ›

Exotic Dancers are Employees, not Independent Contractors, Kansas Supreme Court Rules

In Milano’s v. Kansas Department of Labor, the Kansas Supreme Court determined that exotic dancers were employees, not independent contractors, for purposes of unemployment insurance.

Milano’s had purchased the club in 2002. In 2004, Milano’s began treating the exotic dancers as independent contractors, rather than employees. The Supreme Court, affirming the rulings of the Court of Appeal, the trial court and Kansas Department of Labor, found that the dancers were, in fact, employees under Kansas law. More ›

Why Employers need to keep Adequate Records

Here is a pattern that tends to repeat itself often in employment litigation. A disgruntled employee sues an employer for discrimination, harassment, or wrongful termination. A lawsuit is filed. And then, the attorney who files the suit includes wage and hour claims — i.e., the non-payment of overtime, meal and rest breaks. The employee may also include a claim based on the failure to reimburse the employee for expenses incurred in the course of his or her employment. More ›

California Supreme Court Splits the Baby in Mixed-Motive Employment Discrimination Case

In Wynona Harris v. City of Santa Monica, decided on February 7, 2013, the California Supreme Court addressed the following question:

In an employment discrimination case where an employer terminates an employee both for discriminatory and legitimate reasons, what showing is required for liability to attach to the employer, and what remedies are available?

In Wynona, a terminated bus driver sued the City, her employer, alleging that her termination was motivated by her pregnancy. Discrimination on the basis of pregnancy is prohibited under the Fair Employment and Housing Act (FEHA). More ›

You’re Out of Luck, Appellate Court tells Casino Card Dealers

Avidor v. Sutter’s Place, Inc., decided January 23, 2013, California Court of Appeal, Sixth Appellate District, involved a class action brought on behalf of card dealers employed by Sutter’s Place, a casino.

The dispute arose from a practice by which the employer required its dealers to contribute a set amount of the gratuities they received from players to a common account, which was distributed to other casino employees on payday.

Plaintiff alleged that this practice violation California Labor Code section 351, which provide that gratuities are the sole property of the employee or employees to whom they are given, and prohibits an employer from taking the gratuity of an employee or deducting that amount from wages. More ›