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 ›

New Data Shows that DOL is Actively Enforcing FLSA’s new Breastfeeding Break Requirement

Statistics released earlier this week by the Department of Labor show that the Department is taking seriously the Affordable Care Act’s requirement that employers provide employees with an opportunity for expression of breastmilk. The data — released pursuant to a Freedom of Information Act request by the Wage and Hour Laws blog —– shows that over four dozen employers were investigated for alleged wrongful practices during the first two years of the requirement’s existence. Three dozen of the investigated employers were ultimately cited for violations of the law.  These statistics underscore the need for employers to be aware of and comply with the new breastfeeding-break requirement — the Department of Labor is obviously taking the rule seriously, and employers should do the same. More ›

Senator Introduces Bill to Freeze NLRB Decisions

Hundreds of National Labor Relations Board (“NLRB”) actions, many of which make it easier for workers to unionize, would be frozen or invalidated under legislation proposed this week by Sen. John Barrasso (R-Wy).

The so-called “NLRB Freeze Act of 2013” is a response to a recent D.C. Circuit ruling that President Barack Obama violated the Constitution when he appointed three NLRB members in January of 2012. More ›

NLRB Recess Appointments are Invalid

The National Labor Relations Board (NLRB) is comprised of five members appointed by the President, with the advice and consent of the Senate. Traditionally, Presidents have appointed three members from their own political party and two members from the opposition party. The Constitution authorizes the President to make “recess” appointments when the Senate is not in session. More ›

Federal Appeals Court Strikes down President Obama’s NLRB Appointments

In a decision that could have an enormous impact on employers, a federal appeals court has ruled that President Barrack Obama violated the Constitution when he appointed three members to the National Labor Relations Board (“NLRB”) without Senate approval.

The unanimous ruling from the three-member panel of the Court of Appeals for the District of Columbia Circuit could invalidate hundreds of NLRB regulations and decisions issued since January 4, 2012. President Obama is expected to appeal the ruling to the Supreme Court. More ›

California Supreme Court: Continuous Accrual Principles Apply to 17200 Claims

Today the California Supreme Court issued a long-awaited ruling in the Aryeh case regarding the application of the common law theory of continuous accrual to actions under the unfair competition law (Bus. & Prof. Code section 17200 et seq.) Though the case does not expressly address labor or employment issues, the case is nevertheless important for California employers, as the majority of employment litigation claims made are coupled with a 17200 claim.  More ›

11th Circuit Affirms Summary Judgment in ADEA case where Plaintiff used "Cat’s Paw" Theory

Not all well-designed plans succeed. In the area of employment terminations, however, the practice of having termination decisions made independently by someone other than the employee's immediate supervisor increases the odds of obtaining summary judgment and avoiding trial. More ›

Seventh Circuit: Failure to Object to EEOC Subpoena Within five Business days Waives any Future Objection

Addressing an issue of first impression for a federal appellate court, the Seventh Circuit Court of Appeals has ruled that, in order to object to an EEOC subpoena based on irrelevance or overbreadth, an employer must file a petition within five business days of first receiving the subpoena – if no such timely petition is filed, any later attempts to avoid responding are waived. This decision eliminates what had previously been an alternative theory relied upon by some employers: that an initial failure to file an objecting petition could be remedied by filing a motion to dismiss in federal court when the EEOC seeks to enforce the subpoena. Going forward, therefore, employers that receive an EEOC subpoena which they find to be overly burdensome or irrelevant must file a petition within the 5-day period set forth in EEOC regulations. If that opportunity is missed, any future efforts by the employer to avoid responding will be denied. More ›