Orly Lobel, who recently learned that she had been named a Herzog
Endowed Scholar, now has been awarded a Robert Wood Johnson Foundation
grant. The grant is one of fifteen new research grants bestowed
nationally by the Public Health Law... Posted on Monday, February 8, 2010 at 8:13 am

Yesterday, the NLRB's Chairwoman, Wilma Liebman released a statement
on the nomination of Craig Becker (and the other nominees) to the
Board. Here it is: I am disappointed that we still do not have a fully
constituted Board despite the... Posted on Monday, February 8, 2010 at 8:13 am

Ellen Dannin (Penn State) has just posted on SSRN her article
(forthcoming U. San Francisco L. Rev.) Hoffman Plastics as Labor Law -
Equality at Last for Immigrant Workers? Here's the abstract:Hoffman
Plastics, the poster child of immigration gone wrong,... Posted on Monday, February 8, 2010 at 8:13 am

Last week's post on the use of statistics in reduction in force cases
garnered some interest from a fellow blogger, Stephanie Thomas. She
argues on her blog that small sample statistics still have a place in
workforce reduction litigation. After reading Stephanie's take on this
issue, we carried the conversation over to Twitter (Are you following
me on Twitter @jonhyman? If not, shame on you). My conclusion is that
the Schoonmaker decision merely begs the question of how small of a
sample size is too small Posted on Tuesday, February 9, 2010 at 5:49 am

For the past week, I've been examining the use of statistics in
workforce reduction discrimination cases (6th Circuit downgrades
importance of statistics in reduction-in-force cases and How small is
too small? Litigating sample sizes in reduction in force cases).
What's been missing from this analysis, however, is an explanation of
why raw numbers are so important in these cases, especially in age
discrimination claims. Many workforce reductions are accompanied by an
offer of severance to the group of Posted on Tuesday, February 9, 2010 at 5:49 am

The theme of this week's review is déj� vu. In each category, I've
linked back to at least one post I've written on a similar subject.
Social Media 5 Non-Negotiable Provisions for Your Social-Media Policy
from Molly DiBianca at Delaware Employment Law. For my thoughts on
drafting a social media policy, see Drafting a social networking
policy: 7 considerations. It's Not Just for Teenagers - More
Businesses are Using Facebook to Connect from Jennifer Hays at the
Warren & Hays Employment Law Blog. Privacy: Posted on Saturday, February 6, 2010 at 8:01 pm

By Harley Bjelland One of the big audit issues raised by the U.S.
Department of Labor (the "DOL") in audits of 401(k) plans has been how
quickly an employer transfers amounts withheld from an employee's
paychecks as an elective deferral to the plan's trustee. The DOL has
regulations that require amounts withheld to be deposited with the
trustee for the 401(k) plan as soon as is practical, but in no event
later than 15 days. Many employers think this rule permits them
fifteen 15 days. The DOL has a different Posted on Wednesday, February 3, 2010 at 5:02 pm

By Jennifer D. Barrera A recent opinion from the Fourth Appellate
District Court of Appeal emphasized that employers cannot by agreement
limit the time period in which an employee can file a lawsuit for wage
and hour issues. The opinion also exemplifies the difficulty
associated with satisfying the requirements of the administrative
exemption. In Pellegrino v. Robert Half International, Inc., six
former employees of a temporary staffing company sued their employer
under Business and Professions Code section Posted on Wednesday, February 3, 2010 at 5:02 pm

Carlton DiSante & Freudenberger LLP is pleased to announce the
expansion of the firm's immigration practice group with the addition
of Suzanne G. Brummett to the firm's San Diego and Orange County
offices. Ms. Brummett brings over 15 years of experience in
immigration law to the practice group. She handles all aspects of
employment based immigration matters for corporate clients of all
sizes as well as for individuals. Ms. Brummett also is a published
author of immigration related articles. She is Posted on Friday, January 22, 2010 at 4:32 am

Sears, Roebuck & Co. agreed to settle their Americans With
Disabilities Act ("ADA") lawsuit for $6.2 million. The Equal
Employment Opportunity Commission ("EEOC') filed the lawsuit on hehalf
of individual workers and in the end found 235 workers eligible to
share in the settlement amount. According to the lawsuit Sears
maintained an inflexible workers' compensation leave exhaustion policy
and fired employees instead of providing them with reasonable
accommodations for their disabilities. This is all a Posted on Sunday, February 7, 2010 at 3:02 pm

Suzanne DesMarais settled her sexual harassment lawsuit with the
County after allegedly being sexually harassed by Lt. George
Titko.Titko was in charge of the police department and DesMarais was
under his control and while under his contrrol DesMarais alleged Titko
sent her sexually suggestive text messages and left sex toys on her
desk. Additionally he photographed her backside and subsequently
posted the photo on the wall of the department. Many times text
messages can make or break a lawsuit. It was a Posted on Sunday, February 7, 2010 at 3:02 pm

Gail Wilcox who is the former Assistant County Administrator and she
agreed to settle her sexual harassment lawsuit with her former
employer for $180,000. The county claims that defending the county by
going to trial would potentially cost more than $1 million. To date,
the county has spent $337,000 on the case. That seems to be a very
high amount and I wonder what the initial settlement demand was for.
Wilcox filed her lawsuit against county supervisors and former boss,
David Edge, claiming she was a Posted on Friday, February 5, 2010 at 4:21 am

Ministry sings about a man who works all day in the sun. He sweats a
lot. He works hard. He lives hard. "Breaks his back without nothing to
gain, while the boss man sits around and drinks champagne." The song
is a bit dark, but the beat is uplifting, all the way to the very
[...] Posted on Sunday, February 7, 2010 at 4:07 am

Eclecticity posts a cartoon that E gives a "zowie" to. Is this a scene
from your office? Posted on Sunday, February 7, 2010 at 4:07 am

I routinely post a YouTube video that has something, usually funny, to
do with work, human resources or employment law. I recently found one
already posted on Cultural Offering. Enjoy. Posted on Sunday, February 7, 2010 at 4:07 am

The Illinois Business Law Journal is proud to share our inaugural
issue. This publication of the University of Illinois College of Law
acknowledges the work of our student body. This issue has compiled
writings from relevant areas of law related to business. We hope to
bring you a new edition of the Illinois Business Law Journal this
spring. Please click on the link below to access the Issue: The
Illinois Business Law Journal Fall 2009 Issue 1.pdf (468.23 kb) Posted on Thursday, February 4, 2010 at 4:46 am

I. Introduction Comcast's proposed takeover of NBC Universal is
expected to completely restructure the entertainment industry's
landscape. Analysts, investors, and public interest groups alike have
responded strongly to the anticipated agreement, which is expected to
be finalized imminently. The merger of the largest American cable
company with one of the largest entertainment enterprises in the world
would give the combined entity control over approximately one out of
every five viewing hours in the United Posted on Wednesday, December 23, 2009 at 3:29 pm

I. Introduction Some basic financial concepts and the facts
surrounding the 2008/9 economic crisis constitute the first stage of
this article. The analysis of certain characteristics and effects of
the Bailouts and of having Too Big To Fail Companies in the market is
what follows. Finally, I will go into different opinions and
strategies addressing main issues that are a challenge for the
regulation to be enacted in order to prevent these kind crises and
deal with the legacy of the bailouts. What to do with Posted on Wednesday, December 23, 2009 at 3:29 pm

On January 28, 2010, the Washington Post announced that the Swiss
government has suspended the disclosure of information about tax
cheats to the United States under a February 2009 "deferred
prosecution" agreement and may seek to renegotiate the deal. Under the
agreement the Swiss government was supposed to provide the U.S. with
4,450 accounts of the 52,000 secret accounts not declared to the IRS.
Basically, this means that 14,700 people walked away without
prosecution under the IRS amnesty program, the Posted on Sunday, February 7, 2010 at 11:57 am

Yesterday, Transparency International (TI) released a practical guide
for combating corruption in relief and reconstruction efforts.
"Disasters like the catastrophe in Haiti highlight the absolute
necessity of ensuring that the funds and supplies allocated actually
reach those in need. Corruption in emergency aid is a matter of life
and death. Stopping and preventing corruption should be a strategic
priority for the humanitarian community," said Christiaan Poortman,
Global Programmes Director at TI. Strong Posted on Friday, February 5, 2010 at 1:15 am

With sadness we report the death of Howard Zinn, historian, author,
activist, and founding Board member of the National Whistleblowers
Center. Other sources have already reported Zinn's remarkable
biography. I recall how the time flew by thirty years ago when I read
A People's History of the United States during subway rides to law
school. Zinn's clear and informative writing made me wish I had taking
history classes in college. Here is a photo of Howard Zinn speaking
last year at Busboys and Poets in Posted on Friday, February 5, 2010 at 1:15 am

Some labor & employment law tidbits after the break. The National
Law Journal has a short piece on last term's Supreme Court employment
decisions. The D.C. Circuit has issued a decision reviewing the NLRB's
Register Guard decision involving employee use of email. Â Workplace
Prof Blog has an update here. Â The issue of whether the use of email
constitutes protected activity under Section 7 - a position rejected
by the Board - awaits judicial review for another day as the issue was
not presented to the Posted on Wednesday, July 15, 2009 at 10:33 am

In Anthony v. Ward, the Fourth Circuit affirmed a jury award of
$510,000 to plaintiff Calvin Anthony, former warden of Lee
Correctional Institution in South Carolina. Â The judgment by the
federal district court found defendants Robert Ward and Charles
Sheppard, officials of the South Carolina Department of Corrections
(SCDC), guilty of civil conspiracy under South Carolina law. Â On
appeal, the Fourth Circuit upheld the judgment, finding that the
defendants conspired to force Anthony's termination. Â More Posted on Tuesday, July 14, 2009 at 7:28 am

According to a DHS press release: "Department of Homeland Security
(DHS) Secretary Janet Napolitano today strengthened employment
eligibility verification by announcing the Administration's support
for a regulation that will award federal contracts only to employers
who use E-Verify to check employee work authorization. The declaration
came as Secretary Napolitano announced the Department's intention to
rescind the Social Security No-Match Rule, which has never been
implemented and has been blocked by court Posted on Friday, July 10, 2009 at 6:50 am

The California Labor Code is very strict in protecting an employee's
right to be paid for all compensation that he earns. As we have
repeatedly blogged in the past, it is often a thorny issue to
determine exactly when these protections attach -- in other words,
when has a mere hope or expectation of a reward matured into a fully
vested proprty right that must be paid by the employer without further
delay or reduction? The California Supreme Court recently shed a bit
more light on this issue in Schachter v. Posted on Monday, December 7, 2009 at 2:30 pm

Loan officers, analysts, and brokers of various financial products are
generally considered to be well compensated and prestigious positions.
As a result, these positions are often reflexively classified as
exempt from overtime. The Second Circuit's recent decision in Davis v.
J.P. Morgan Chase & Co. should cause employers to question this
assumption. The Davis decision holds that a given position cannot be
considered exempt unless it falls on the correct side of the so-called
"production/administrative Posted on Monday, December 7, 2009 at 2:30 pm

In Parth v. Pomona Valley Hospital Medical Center, the Ninth Circuit
authorized employers and employees to exercise some flexibility in
attempting to work around the overtime requirements of the FLSA. In
Parth, a group of nurses was originally assigned to work almost
exclusively in 8-hour shifts. The majority of the nurses, however,
"preferred working 12-hour shifts in order to have more days away from
the hospital." As a result, the Company implemented a new pay plan.
The pay plan provided nurses the Posted on Monday, October 26, 2009 at 11:05 am

The EEOC has filed a lawsuit under Title VII of the Civil Rights Act
against an upscale steakhouse in New York City. It is alleged that
male management groped and made sexual comments to other male
employees. After the victims of the harassment complained about the
unwelcome sexual behavior, management retaliated by assigning the
complainants "less desirable" work. Subsequently, the victims were
terminated. In commenting on the case, EEOC New York District Director
Spencer H. Lewis Jr. stated, "EEOC is Posted on Friday, January 29, 2010 at 2:36 pm

A former hotel clerk who claims she was fired because she was not
pretty enough is bring suit against a major hotel chain. The 8th
Circuit Court of Appeals is allowing the woman to sue Heartland Inns
of America, who she claims fired her due to her "tomboy" appearance.
The former employee received positive reviews and two raises while
employed by the hotel, but was criticized for wearing loose fitting
clothes and not wearing make up. After she was fired, the hotel began
videotaping potential front desk Posted on Tuesday, January 26, 2010 at 11:25 am

The New York City Fire Department is being threatened with the
imposition of hiring quotas as a remedy for the intentional race and
national origin discrimination in their hiring. A Federal Judge in
Brooklyn found that two written exams were not job related which had
an adverse impact against numerous African-American and Hispanic
candidates. Among the remedial measures to be put in place are
immediate emergency hiring of qualified minority candidates and
revisions of the exams. Posted on Saturday, January 23, 2010 at 11:38 am

Posted on Sunday, February 7, 2010 at 12:12 am

Posted on Thursday, February 4, 2010 at 12:48 pm

Posted on Monday, February 1, 2010 at 2:46 pm

I know, I've been remiss in my blogging. Blame it on Jennifer Shaw's
new baby. She can't read yet. So, the Court of Appeal in Dotson v.
Amgen (opinion here) held that Amgen's arbitration agreement was
lawful. Specifically, a limitation of one deposition per side unless
the arbitrator ordered more based on need was lawful. The Court also
noted that a provision reserving all interpretation issues to the
arbitrator save unconscionability was ok. The Court also held that a
provision permitting appellate review Posted on Sunday, February 7, 2010 at 12:38 am

As some of you know, Jennifer Shaw is my partner, chief rainmaker, and
employment lawyer extraordinaire, over here at Shaw Valenza. As a
partner, she is not entitled to Pregnancy Disability Leave under
California law. You can read about that in this article I recently
wrote for the SF Daily Journal, here. Of course, this is just my
sneaky way of announcing the arrival of Baby Shaw, female, on January
21. "What's New in Employment Law?" you ask? "Jennifer's baby," I
reply. See what I did there? Huh? Please Posted on Friday, January 22, 2010 at 7:45 pm

Did you know that the 2010 Defense Appropriations Bill is actually an
employment law bill? Well, when Congress keeps passing laws over with
100's of pages of text, you're going to see some hidden gems in there.
So, the 2010 Defense Appropriations Act, which was H.R. 3326, appears
to make the first cut of the 1000 that eventually will end arbitration
of individual employment claims. The new law applies only to defense
contractors that receive more than $1,000,000 under the Defense Dept.
Appropriations Act. Posted on Monday, January 11, 2010 at 1:26 am

George's Employment Blog has a guest post on negligent hiring that's
worth reading. The author discusses the recent California case Philips
v. TLC Plumbing. I've written a number of times on this blog about
negligent hiring (here, here, here) and, while Canadian cases remain
rare, Canadian employers would be wise to take note of the issue when
hiring employees. In Ontario read Bill 168 and the obligation under
this legislation. Posted on Monday, February 8, 2010 at 11:49 pm

The Ontario Court of Appeal considered a number of issues, including
its own jurisdiction, in a whistleblower case. In this case, a federal
civil servant whose employment was "governed by a comprehensive scheme
that includes statutes, regulations, collective agreements and other
governmental directives" advanced tort claims against his supervisors,
the federal government in the Ontario Superior Court. The respondent
brought a motion to strike out the claim on the basis that the
employee was not a Posted on Saturday, February 6, 2010 at 2:02 pm

You may remember that a few years back, we saw a wave of overtime
class action claims brought against a number of large Canadian
employers. Last June, the Court declined to certify the overtime class
action brought by a teller against the Canadian Imperial Bank of
Commerce (the National Post reported that the plaintiff will appeal to
the Divisional Court). There is some suggestion that, at least in the
US, large employers are no longer the sole or prime target of these
claims. According to this article: Posted on Saturday, February 6, 2010 at 2:02 pm

Please visit www.charlesakrugel.com for my new site/blog. All content
is now there. This blog will be gone in a few days. Thanks, Chuck
Krugel. Posted on Wednesday, October 10, 2007 at 8:40 pm

It's been more than 5 weeks since my last posting. The reason for such
a long time lag is simple: I have a new website. My new site is at
www.charlesakrugel.com. All of my content (i.e., posts, links,
comments, media, link exchanges, everything) has been transferred to
this new site. I'll be taking down this site shortly, and this is my
final post here. The new site is on the WordPress platform and looks
fantastic (in my opinion). Thanks to Alex Mielus and his brother
George from Bucharest, Romania, and Posted on Saturday, October 6, 2007 at 11:55 am

The Horton Group has published the following article, in its law
related newsletter--Legal-EASE, written by a mutual associate of ours
Michael Zolno of Zolno Consulting. All businesses, especially law
firms, go through succession, which can cause a great deal of internal
and external turmoil. In fact the survival of the firm may well depend
upon how well the succession is dealt with. Studies show less than 50%
of all businesses ever make it from the first generation to the next.
Even less make it to Posted on Sunday, August 26, 2007 at 2:27 pm

Share OK, before we get to the charts a quick note that the EEOC has
issued New Data on Job Patterns in the Private Sector. As part of a
push for "open government," they're posting aggregate data sets of the
results of the 2008 EEO-1 survey. They claim it's part of a "larger
EEOC effort to advance the President's goal of opening up our
government and providing greater access to agency information and
operations." The 2008 data shows the following rates of employment (by
race): White - 65.58% Black - 13.98% Posted on Sunday, February 7, 2010 at 9:51 pm

Share What is the status of the National Labor Relations Board and why
is it so hard to figure out? Is it Already Here? Section 3(b) of the
NLRA provides that: "The Board is authorized to delegate to any group
of three or more members any or all of the powers which it may itself
exercise. . . . A vacancy in the Board shall not impair the right of
the remaining members to exercise all of the powers of the Board, and
three members of the Board shall, at all times, constitute a quorum of
the Board, except that Posted on Friday, February 5, 2010 at 11:18 am

Share In my last post, State of the Unions - EFCA-Lite and the Private
Sector Decline, I noted (via NYT) that 2009 was the first time that
government union members outnumbered private sector union members. As
a follow-up to that post, I present a chart (with table of data) of
the number of union members by sector over the first decade of the
21st century: Source: Department of Labor Bureau of Statistics
Historical Data Year Private Public Total 2000 9,219,000 7,115,000
16,334,000 2001 9,148,000 7,157,000 Posted on Tuesday, February 2, 2010 at 6:31 pm

Last Friday marked the one-year anniversary of the Lilly Ledbetter
Fair Pay Act (P.L. 111-2), the first major legislation President Obama
signed into law, and the first dealing with labor and employment law.
For a year, though, its companion legislation, the Paycheck Fairness
Act (H.R. 12/S. 182), which already passed the House, has remained
stalled in the Senate…until now. At a press conference celebrating
the one-year anniversary of the Ledbetter Act, Senator Chris Dodd
(D-CT) announced that the Senate Posted on Friday, February 5, 2010 at 2:46 pm

It's been an interesting week, labor-wise, in Congress and the big
events offered reason for both optimism and despair regarding the
ability of the legislative branch to proceed on legislative matters
designed to address issues facing the nation's labor force. Senators
Charles Schumer (D-NY) and Orrin Hatch (R-Utah), on Wednesday,
February 3rd, offered details about legislation that would exempt any
employer that hires a worker, who has been without full-time work for
at least 60 days, from paying the Posted on Friday, February 5, 2010 at 2:46 pm

Corporate compliance officers don't need a crystal ball to figure out
that the enforcement environment under the Obama administration is
getting more serious. But as to white collar crime, the outlook may be
improving for corporations with effective compliance and ethics
programs in place - or at the very least, there is now a little more
guidance on how to mitigate corporate culpability for criminal
conduct. On January 21, the US Sentencing Commission (USSC) published
its proposed amendments to the Posted on Tuesday, February 2, 2010 at 10:56 pm

It's always risky to misclassify someone who should be an employee as
an "independent contractor," but President Obama's 2011 budget
proposal will increase the risks for employers. According to this
budget summary from the U.S. Department of Labor, the
misclassification of employees as contractors is estimated to cost the
Treasury Department over $7 billion in lost payroll tax revenue over
the next ten years. To help make up for this shortfall, the proposed
budget includes funds earmarked for a "joint Posted on Friday, February 5, 2010 at 12:30 am

Most of us assume that if an employee swears at a manager or, he or
she can be disciplined or even fired. That assumption may be wrong,
depending on the context in which the swearing occurs. A federal judge
recently held that the Federal Aviation Administration violated
federal labor law when it removed a local union president from its
premises after he used profanity toward his supervisor in the course
of union activity. Click here to read the opinion in FAA and National
Air Traffic Controllers Posted on Friday, February 5, 2010 at 12:30 am

On my way in to work this morning, I was listening to NPR's Morning
Edition, and caught an interview with Lewis Maltby, president of the
National Workrights Institute. The interview was ostensibly to promote
Mr. Maltby's new book, " Can They Do That?" in which he discusses
employment termination cases that were deemed legal, but seem, in his
opinion, to be disproportionately severe or unjust. What Mr. Maltby
appeared to decry (without using the proper terminology) is the
American presumption of "at will" Posted on Friday, January 29, 2010 at 11:47 pm

On January 21, 2010, the Appellate Division decided In the Matter of
Rosemarie Tatusko, Docket No.: A-2888-08T3. The case involved an
appeal from a final decision of the Board of Trustees of the Police
and Firemen's Retirement System which denied Rosemarie Tatusko's
("Appellant") application for an accidental disability pension.
Appellant was employed by the Department of Corrections as a senior
correctional officer at the Burlington County Jail. Her application
for an accidental disability pension was Posted on Saturday, January 30, 2010 at 2:23 am

On January 27, 2010, the Appellate Division decided Gregory Russo v.
Board of Trustees, Police and Firemen's Retirement System, Docket No.:
A-3706-08T2. In the case, Gregory Russo appealed from the March 10,
2009 final determination of the Board of Trustees of the Police and
Firemen's Retirement System ("Board") denying his application for
accidental disability benefits. On November 29, 2001, during his first
year as an officer for the Montclair Police Department, Russo was
dispatched to the scene of a Posted on Saturday, January 30, 2010 at 2:23 am

On January 14, 2010, the Appellate Division decided In the Matter of
Jerry Duckworth, Department of Youth Services, County of Passaic,
Docket No.: A-6007-07T1. In the case, Jerry Duckworth appeals from a
final decision of the New Jersey Department of Personnel, Merit System
Board, dismissing his appeal of removal from employment. The Board
adopted the findings and conclusions of an Administrative Law Judge
("ALJ"), determining that Duckworth had entered into an enforceable
settlement agreement with his Posted on Thursday, January 21, 2010 at 12:21 am

It is no secret that in services agreements between staffing companies
and their clients, no-hire provisions are common and essential to
maintaining a long-term relationship. Often times, however, these
provisions are not known to the staffing agency's contractors or
employees. For those workers who ingratiate themselves to the end-user
client, a long-term employment relationship may be a very realistic
possibility. The clients, at whom laborers are placed, also have a
financial interest in employing Posted on Friday, February 5, 2010 at 8:40 pm

Most well-drafted non-compete agreements contain "prevailing party"
fee-shifting clauses. In fast-moving emergency litigation, attorneys'
fees often become a significant impediment to settling the case and
can far exceed damages exposure. Just because a party does not obtain
a large damages verdict for proving breach of a non-compete does not
mean attorneys' fees are off the table. When courts examine whether to
award fees, it will look to whether the plaintiff obtained significant
relief - and the most Posted on Wednesday, February 3, 2010 at 5:17 am

Obtaining preliminary injunctive relief is never easy, even when a
non-compete violation is established. It's even more difficult,
however, for a plaintiff to convince the court to issue an injunction
when it has been a defendant in the exact same type of litigation and
argued against injunctive relief. That scenario in fact led a New York
court to deny preliminary injunctive relief for a financial
institution, Tradition Chile Argentes, when it sought to prevent a
competitor from hiring several of its Posted on Wednesday, February 3, 2010 at 5:17 am

Among the most intellectually challenging and unresolved issues facing
employment attorneys is the very basic question of whether a partner
in a business can also be an employee. Over the last several years
many law firms have been sued by "partners" for violating the Age
Discrimination in Employment Act -- even though the plaintiff was a
partner in the firm, i.e., the plaintiff is, at least theoretically,
one of the owners of the business. Generally speaking, the owner of a
business is not also an employee Posted on Monday, February 8, 2010 at 3:25 pm

Have you been denied a job because of your genetic information? Did
your employer terminate you because it learned that you have a genetic
predisposition to breast cancer, Huntington's disease or bipoloar
disorder? Probably not -- but it's only a matter of time before
someone, somewhere, is subject to a pre-employment genetic screening.
Thankfully the federal government is ahead of the curve on this one.
The Genetic Information Nondiscrimination Act ("GINA") took effect on
November 21, 2009 and broadly Posted on Monday, February 8, 2010 at 3:25 pm

The blog just learned that Ryder Trucking, one of Florida's largest
private employers, in laying off 67 workers by the end of March. These
workers are mostly based in Jacksonville, Florida. Ryder, based in
Miami, has had several rounds of layoffs in the past several years. We
know this because Ryder filed a "WARN Act" notice with the state ahead
of the layoffs. Afraid of your own layoff? Afraid the company will
just close without any warning? It may be illegal and you should be
prepared ahead of time. Posted on Saturday, February 6, 2010 at 5:24 am

Sexual harassment is a major concern in California's workplaces. In
2009 alone, the Equal Employment and Opportunity Commission (EEOC),
received over 12,600 allegations of sexual harassment. If you think
you have been a victim of sexual harassment, you should know that
there are two forms of sexual harassment. The first type of sexual
harassment is known as "quid-pro-quo" harassment. "Quid-quo-pro" is a
Latin term that means "this-for-that." This type of harassment
involves a trade of sexual favors in Posted on Tuesday, January 26, 2010 at 9:50 pm

If you are sick of being referred to by racial slurs and epithets at
your job, you should know this behavior is against both California and
federal law. Under the law, your boss is prohibited from
discriminating against you on the basis of your race in relation to
the terms and conditions of employment. He or she also may not harass
you on the basis of your racial or ethnic characteristics. "Race" is
typically defined as a person's ancestry or ethnic characteristics.
When discrimination based on race Posted on Tuesday, January 26, 2010 at 9:50 pm

Sexual orientation discrimination is not only wrong, but it is
illegal. California law protects individuals from facing this type of
discrimination in northern California workplaces. In addition, the law
also protects employees from being discriminated against on the basis
of their "perceived" sexual orientation. This means that if an
employer refuses to hire you because he thinks that you are gay, and
you are not, you may still have a legal claim. It is very important to
note that sexual orientation Posted on Tuesday, January 26, 2010 at 9:50 pm

Albertsons, LLC, a national grocery chain, will pay $8.9 million and
furnish other relief to settle three employment discrimination
lawsuits filed by the U.S. Equal Employment Oppor tunity Commission
(EEOC), the agency announced today. The EEOC had charged Albertsons
with race, color, and national origin discrimination and retaliation
at its Aurora, Colo., distribution center. The monetary relief will be
distributed among 168 former and current employees. All three of the
EEOC's... Posted on Friday, January 22, 2010 at 6:07 am

The U.S. Supreme Court has agreed to hear the appeal in Rent-A-Car,
West, Inc. v. Jackson. The question before the Court will be whether
the district court is in all cases required to determine claims that
an arbitration agreement subject to the Federal Arbitration Act
("FAA") is unconscionable, even when the parties to the contract have
clearly and unmistakably assigned this "gateway" issue to the
arbitrator for decision. The pendulum in the U.S. Congress has... Posted on Friday, January 22, 2010 at 6:07 am

Yet another example of an employee believing that his statements
published for the world to see online are somehow anonymous or not
subject to his employer's scrutiny. The Huffington Post this week has
the story of a school employee lost his job after he posted a one-word
vulgarity in the comments section of an online article at the St.
Louis Post-Dispatch. The school employee posted an anonymous, one-word
comment that referred, in vulgar terms, to a woman's anatomy on a... Posted on Wednesday, December 23, 2009 at 1:25 am

Posters are the simplest and easiest way to convey any message to
anyone. We can put our intentions into every ones' attention without
harming anyone. Thus, the posters are playing a wide role in our life.
Posters are also used to give inspiration ideas to everyone. We can
use the language of posters to make people aware of their
surroundings. And the Federal labor law poster is also a kind of
poster, which is helpful in making people aware of the labor laws.
Everyone should know about his rights. And the Posted on Thursday, February 4, 2010 at 7:55 pm

The labor law posters came into existence because the federal
government felt to get organized and make things easier for the
customers. Labor law posters are meant to reflect the new (EEOC) Equal
Employment Opportunity. These showcase the latest products for the
inventory. A labor law poster comprises of the state OSHA posting and
federal requirements. The business needs compliance and labor law
posters help for the same. There are many websites, which provide a
wide range of labor law posters. It is easy Posted on Monday, February 1, 2010 at 11:35 pm

Federal law is a part of the heterogeneous collection of the laws
specified by United States labor laws. Federal labor law helps to
organize and set the standards of a worker's right in a private
sector. At the same instance, it even overrides most of the state laws
and the local laws that try to regulate this area of action. For those
working in the federal government limited rights are provided by the
federal law. A federal labor law poster is a body issuing all these
standards provisioned by the federal Posted on Tuesday, January 26, 2010 at 2:38 pm

I apologize for the almost total lack of posting. I was in a trial
that involved testimony over 4 weeks starting October 6, and just
finished up the concluding briefs today. If you can believe it, in the
middle of all of that I had stomach surgery which cured a debilitating
case of heartburn and as an added bonus has caused me to lose 15
pounds already. So, I thought I'd point to this post from Robin
Weideman on Dowell v. Pacesetter, Inc., a case which is more or less
unremarkable, except that it is part of Posted on Thursday, December 10, 2009 at 12:30 pm

MoFo says [pdf]: The 2009 legislative sessions in both Sacramento and
Washington, D.C. have yielded significant developments for labor and
employment law. Both? I would say, on the contrary, the 2009
legislative session in Sacramento was probably the least eventful of
the decade in developments "for" labor and employment law. Share it:
Hide Sites Posted on Thursday, December 10, 2009 at 12:30 pm

Here's CalBizLit's comment on Justice Gilbert's reworked opinion on
arbitration finality. I find this interesting because what I have
termed in the past "arbitroskepticism" seems to be a contrarian point
of view, but it is increasingly gaining traction among lawyers who
blog. The simple logic was always this: if the forum really was so
advantageous for employers (or any one side, whoever) how long could
it really be before the courts and/or legislature took notice. Added
to that was, where's the data? And Posted on Wednesday, October 21, 2009 at 2:51 pm

"BeenVerified" is a new mobile Web application that allows users to
conduct background checks on any individual by merely entering the
name or email address of the individual. Users get three free
background checks monthly and unlimited checks for a monthly fee of
only $8. BeenVerified has been a smashing success, with more than one
million checks run to date. HR professionals, recruiters, managers,
and co-workers may find BeenVerified hard to resist. According to the
application, users can check an Posted on Saturday, January 30, 2010 at 1:42 am

Employers already face concerns about how to handle employees
trash-talking about them on blogs, Facebook and other social media.
Now, employers must be cautious of the converse - employee
endorsements of their employers' products and services on social media
websites. The Federal Trade Commission (FTC) recently issued updated
guidelines aimed at protecting consumers from misleading endorsements
and advertising. As these guidelines make clear, employers whose
employees use social media like blogs or Posted on Wednesday, January 6, 2010 at 5:22 pm

As the Supreme Court prepares to address the question whether public
employees can expect privacy in text messages sent by
government-issued phones through a service provider under contract
with the government, federal district courts continue to reach
conflicting results when addressing whether private employees waive
the attorney-client privilege by communicating with a personal
attorney using their employer's electronic resources. With yet another
federal court recently finding no waiver, employers Posted on Friday, December 25, 2009 at 5:15 am

We've heard a lot in the past week about President Obama's proposed
budget, unveiled after his State of the Union speech last Tuesday.
Topic number one seems to be how the budget plan would affect the
national deficit. Apparently of quite a bit less interest, judging by
the limited press it's received, is the proposal to extend the COBRA
subsidy through 2010. It's been reported that the budget proposal
would make the subsidy available to those who are involuntarily
terminated from March 1, 2010, through the Posted on Sunday, February 7, 2010 at 6:56 am

A few weeks ago, an appeals court in New Jersey decided, in J.T.'s
Tire Service v. United Rentals North America, that one business can
sue another business for quid pro quo sexual harassment. If you're
wondering how one business might make sexual advances toward another,
the answer is: the old-fashioned way, with wandering hands and
unwanted sexual propositions. The facts of the case allege that
Harold, the manager of an equipment rental company, stopped buying
tires from Eileen, owner of a tire service, Posted on Monday, February 1, 2010 at 7:24 pm

My last post covered some of the many employment law developments of
2009, but what about the future? This could be another big year in the
field, mainly because of the recent retirement announcements by
Senator Dodd and Senator Dorgan, both Democrats. This means 2010 could
be the swan song of the 60-vote Democrat (and Independent)
filibuster-proof majority, giving some extra urgency to some of the
labor and employee protective measures under consideration, such as:
The Employment Nondiscrimination Act Posted on Wednesday, January 20, 2010 at 1:55 pm

Six of Patterson Harkavy's attorneys have been named North Carolina
"Super Lawyers" for 2010 in a recent study by Law & Politics
magazine. The findings are published in the February 2010 edition of
the North Carolina Super Lawyers magazine. Patterson Harkavy's 2010
North Carolina "Super Lawyers" are: Valerie Johnson - Workers'
Compensation Leto Copeley - Workers' Compensation Burton Craige -
Personal Injury: Medical Malpractice Hank Patterson - Workers'
Compensation Michael Okun - Labor & Employment Posted on Thursday, February 4, 2010 at 4:27 am

On the heels of Mike's talk to the North Carolina Legislature's Joint
Study Committee on Work and Family Balance, the Center for American
Progress has published an excellent new report, "The Three Faces of
Work-Family Conflict." The paper describes how the typical workplace
today is deeply out of sync with today's workforce because of dramatic
changes over the past few decades in incomes, working hours, and
patterns of family care. Moreover, our employment laws have failed to
keep up with these changes, and Posted on Monday, February 1, 2010 at 3:34 am

In Franco v. Lipposcience, Inc., the North Carolina Supreme Court
affirmed per curiam an NC Court of Appeals decision regarding
employment at will. The COA had issued a split-decision earlier this
year, with Judge Wynn writing for the majority and Judge Erwin
dissenting. The plaintiff, who had been the VP of Marketing, was
terminated and sought to bring a breach of contract claim. At issue
was whether he had a partial employment contract, or whether he was an
ordinary at-will employee. Most employees are Posted on Friday, January 29, 2010 at 12:20 am

On Friday, January 29, 2010, Douglasville attorney Jack Clay spoke and
introduced Justice David Nahmias to a crowd of fellow lawyers and
local judges. Jack Clay was named as the first Chairman of the West
Metro Trial Lawyers Association (WMTLA) in June of 2009. Thus far,
this group of local lawyers dedicated to preserving the civil justice
system for Georgians has hosted an evening party attended by local
judges and elected officials. The WMTLA also hosted lunch featuring
David Poythress, candidate for Posted on Thursday, February 4, 2010 at 4:38 pm

As an auto accident attorney in Douglasville, it is hard not to think
about car wrecks and truck accidents on a rainy day such as today.
Many of the cases that my office handles involve car accidents that
occurred due to poor weather conditions and other factors. I found a
list this morning produced by the National Highway Traffic Safety
Administration (NHTSA) that shows the top six most common causes of
auto wrecks, including weather. 1. Distracted Drivers 2. Driver
Fatigue 3. Drunk Driving 4. Speeding 5. Posted on Sunday, December 6, 2009 at 4:30 pm

If you are a Douglas County resident, perhaps you noticed an increase
in law enforcement presence this week. It seems as though during a
holiday week or weekend, local police are making sure to keep a close
eye on drivers. Rest assured it is for everyone's safety. I wanted to
take a moment to remind everyone of an important law in Georgia that
also works towards keeping drivers safe. Some of you may recall from
years past Georgia's Move Over Law. It has been enforced by local law
enforcement, such as the Posted on Sunday, December 6, 2009 at 4:30 pm

The Albany Times-Union has reported on a recent court case involving
discrimination against a transgender woman who was subjected to
harassment and fired by the New York State Thruway Authority. She has
been awarded more than $55,000 for her ordeal. She is still seeking
reinstatement to her job. A judge with the state Division of Human
Rights has issued an order sustaining a complaint by Mackenzie W.
Valentine, 29, a former Army dispatcher and military police officer
from Cohoes who was diagnosed with Posted on Wednesday, January 20, 2010 at 10:23 pm

It looks like the Salt Lake City non-discrimination ordinance,
historic because of a change in position by the Mormon Church, is
going to take effect. It is not likely, however, despite some
expectations to the contrary, to be expanded statewide anytime soon.
Legislature may let SLC's gay-rights measures stand - Salt Lake
Tribune: "Salt Lake City's landmark protections for gay and
transgender residents appear likely to take effect after surviving the
last hurdle: the Legislature. But most legislative Posted on Wednesday, January 20, 2010 at 10:23 pm

Loudoun Not to Discriminate Based on Sexual Orientation, Gender
Identity | Loudoun Independent Interestingly, the Washington Post
article on this new ordinance did not mention gender identity or
transgender protections, but reported on the story as if sexual
orientation were the only element of the law. In the linked article,
the journalist misstates the meaning of the term gender identity. It
sounds as if there hasn't been enough education in Loudoun County on
gender identity issues. But progress is a good Posted on Wednesday, January 20, 2010 at 10:23 pm

The Texas Supreme Court recently made it even easier to enforce
noncompete agreements. Ever since the court's opinion in the
Sheshunoff case, it has been an open question whether, to be
enforceable, a noncompete agreement must contain an explicit promise
by the employer to provide confidential information to the employee.
In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 52 Tex.
Sup. J. 616 (Tex. April 17, 2009), the court answered this question,
and held that the employer's promise to do so Posted on Saturday, May 16, 2009 at 7:35 am

A recurring issue in employee mobility cases is the extent to which a
non-solicitation provision in an employment contract is enforceable.
Typically, an employment agreement will contain a provision
prohibiting post-employment competition, provisions prohibiting
post-employment solicitation of customers and/or employees, or both.
It's not uncommon for a provision prohibiting solicitation of
employees to apply to all of the employer's employees. However,
several Texas cases, including a recent one from the Posted on Monday, March 23, 2009 at 8:00 am

A recurring issue in non-compete cases involves how definite the
employer's promise to provide confidential information must be for the
agreement to be enforceable. Historically, disputes have focused on
whether an explicit promise to provide the information was required,
or whether an implied promise (e.g., language in which the employee
"acknowledged" that he would receive information) was sufficient. In a
recent case from the United States Court of Appeals for the Fifth
Circuit, the court held that the Posted on Monday, December 22, 2008 at 2:23 pm

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA),
which amended the Public Health Service Act, the Employee Retirement
Income Security Act (ERISA) and the Internal Revenue Code, generally
is effective for plan years beginning on or after October 3, 2009. For
calendar year plans, the effective date is January 1, 2010. The
Departments of Labor (DOL), Health and Human Services (HHS), and the
Treasury have published an interim final rule implementing the
provisions of MHPAEA. The regulation is Posted on Tuesday, February 2, 2010 at 2:21 am

Employee contributions to retirement plan have to be treated as plan
assets and submitted to the plan in a timely manner. The old rule
required that while employee contributions had to be segregated from
the employer's general assets, there was limited guidance about how
long the employer had to submit those withheld contributions to the
plan. There is a requirement that they be submitted in a "reasonable"
time frame at the earliest reasonable date, not later than the 15
business days into the month Posted on Tuesday, January 26, 2010 at 6:01 pm

The US Department of Labor has provided 2 more Fact Sheets regarding
the COBRA subsidy extension. One is a Fact Sheet that provides a
general explanation of the extension. The second is a Frequently Asked
Questions sheet that answers some more specific questions from an
employee's point of view. I found these notices particularly useful
because the introduce the concept of "transition period" as it relates
to the change from 9 months to 15 months. An individual's "transition
period" is the period that Posted on Wednesday, January 20, 2010 at 10:44 pm

If you couldn't find the remote after the Saints pantsed the Colts
(regretting their "We're baaa-ack!" call in the pregame yet?) in this
evening's Super Bowl, you were stuck watching CBS's new show
"Undercover Boss." I have to admit: I wasn't planning on watching it,
and when the remote fell between the sofa cushions, I then planned on
hating it. But in the end, I didn't. I'm not saying that I'm going to
fan it on Facebook and start planning my life around it, but I did
watch this debut episode. The premise Posted on Monday, February 8, 2010 at 9:41 pm

One of my big goals for 2010 was to adjust my role as a commentator
(mainly over at The Client Revolution) on the state of the practice of
law and become more of a change agent dedicated to helping fix it.
Today I'm taking a first step in that direction by joining the faculty
of the pioneering Solo Practice University. If you're not familiar
with SPU you should head on over and check it out. Under the
leadership of legal-education trailblazer Susan Cartier Liebel (who
also blogs at the ABA Blawg 100 site Posted on Monday, January 25, 2010 at 7:50 am

(For the definition of "to pown," check out Urban Dictionary here.)
(Noob.) I've got to be honest with you. I've never been a big Conan
O'Brien fan. At least, not until today. This afternoon, the New York
Times reported that Conan had rejected NBC's plan to move his "Tonight
Show" from its 11:35 p.m. slot to 12:05 a.m. to accommodate Jay Leno's
return to late-night television. This is just the latest step in a
drama that has quickly spun out of NBC's control. Some background, in
case you haven't been paying Posted on Friday, January 22, 2010 at 8:27 am

Martinez v. Combs has been on the Supreme Court's desk for more than
five years! The Court just announced that it will hear oral argument
on Tuesday, March 2, 2010, at 9:00 a.m., in San Francisco. See the
Court's docket here. The Court states the issues presented as follows:
Petition for review after the Court of Appeal affirmed in part and
reversed in part the judgment in a civil action. The court ordered
briefing deferred pending decision in Reynolds v. Bement, S115823,
which includes the following issue: Posted on Friday, February 5, 2010 at 1:48 pm

In Barbosa v. IMPCO Technologies, Inc. (November 30, 2009) 179
Cal.App.4th 1116, the Court of Appeal held that the public policy in
favor of an employer's duty to pay overtime wages protects an employee
from termination for making a good faith but mistaken claim to
overtime. Manuel Barbosa was a shift leader who was paid by the hour.
Two of the employees whom he supervised approached him and stated that
they had not been paid for two hours of overtime work. Mr. Barbosa
complained to management, who paid him Posted on Tuesday, February 2, 2010 at 9:48 pm

In Keller v. Tuesday Morning, Inc. (November 4, 2009, Second
District) 179 Cal.App.4th 1389, the Court of Appeal held that the
trial court did not abuse its discretion in granting motion to
decertify a class of retail store managers "where multiple witness
declarations asserted in detail that tasks performed by each class
member were dissimilar, and so individualized issues of liability and
damages would predominate over issues common to the class." The
opinion includes a detailed discussion of the Posted on Tuesday, February 2, 2010 at 9:48 pm

It is with deep regret and sorrow that Sullivan & Ward, P.C. notes
that one of the members of the firm, John Donnelly, recently passed
away. Mr. Donnelly was a distinguished member of the Iowa Bar,
graduate of Harvard University and University of Michigan Law School.
We are saddened by the premature departure of our friend and
colleague. Posted on Tuesday, January 26, 2010 at 7:40 pm

Prior posts on this site have dealt with terminating a trust or
breaking a trust in Iowa. A recent case from the Iowa Court of Appeals
further clarified the ability of beneficiaries to terminate a trust in
Iowa under the Iowa Trust Code. In the Matter of the Trust under the
Last Will and Testament of Mary E. Weitzel, Mom executed a will which
provided that her assets would stay in trust for her life, then upon
daughter's death, the balance of the estate would pass to daughter's
children (mom's grand kids). Posted on Sunday, December 27, 2009 at 8:07 pm

The eviction process (also called a "Forcible Entry and Detainer" or
"FED) in Iowa is just a little more strict. A ruling from the Iowa
Supreme Court today now requires that the landlord give personal
service notice of the eviction hearing. Previously, under the Iowa
Uniform Residential Landlord Tenant chapter of the Iowa Code (Iowa
Code 562A), if a landlord was ready to evict and had followed the
necessary "notice to quit" requirements, the landlord could give the
tenant notice of the eviction hearing Posted on Wednesday, December 16, 2009 at 2:00 am

The following blog entry is written from a defendant's position during
the early stages of litigation. Reviewing this kind of briefing should
help potential plaintiffs and clients better understand how parties in
personal injury cases present such issues to the court. (Please note:
the names and locations of all parties have been changed to protect
the confidentiality of the participants in this sexual
harassment/personal injury case and its proceedings.) DEFENDANT'S
DEPOSITION MUST BE COMPELLED BECAUSE Posted on Tuesday, February 2, 2010 at 7:19 pm

The following blog entry is written from a defendant's position during
the early stages of litigation. Reviewing this kind of briefing should
help potential plaintiffs and clients better understand how parties in
personal injury cases present such issues to the court. (Please note:
the names and locations of all parties have been changed to protect
the confidentiality of the participants in this sexual
harassment/personal injury case and its proceedings.) LEGAL ARGUMENT
THIS COURT HAS THE AUTHORITY TO Posted on Wednesday, January 27, 2010 at 9:16 am

The following blog entry is written from a defendant's position during
the early stages of litigation. Reviewing this kind of briefing should
help potential plaintiffs and clients better understand how parties in
personal injury cases present such issues to the court. (Please note:
the names and locations of all parties have been changed to protect
the confidentiality of the participants in this sexual
harassment/personal injury case and its proceedings.) Three more times
on June 8, 2006, Ms. Brown's Posted on Sunday, January 24, 2010 at 9:18 am

NLRB Law Memo 07/17/2009 by LawMemo - First in Employment Law. Also by
email. NLRB - Staff summarized 1 decision. Jackson Hospital Corp.
d/b/a Kentucky River Medical Center (9-CA-37734, et al.; 354 NLRB No.
42) Jackson, KY, July 9, 2009. The Board affirmed, with some modified
rationale, the administrative law judge's determinations regarding
discriminatee Melissa Turner's eligibility for reinstatement and
backpay. The Board primarily addressed the effect of Turner's
post-discharge felony drug conviction, Posted on Friday, July 17, 2009 at 9:03 am

NLRB Law Memo 07/08/2009 by LawMemo - First in Employment Law. Also by
email. NLRB - Staff summarized 1 decision. Detroit Legal News Co.,
d/b/a Inland Press (7-CA-50893, 354 NLRB No. 36) Detroit, MI, June 26,
2009. The Board affirmed the administrative law judge's finding that
the Respondent's statement to David W. Snyder that it refused to hire
him because he took "every problem to the union" violated Section
8(a)(1) of the Act. The Board also found that the Respondent's refusal
to hire Snyder violated Posted on Wednesday, July 8, 2009 at 9:11 pm

NLRB Law Memo 06/19/2009 by LawMemo - First in Employment Law. Also by
email. NLRB - Staff summarized 1 decision. A & C Healthcare
Services, Inc. (20-CA-33588, 33780; 354 NLRB No. 33) Millbrae, CA,
June 8, 2009. The Board adopted the administrative law judge's
findings that the Respondent violated Section 8(a)(5) and (1) of the
Act by: (1) refusing to recognize and bargain with the Union from
sometime prior to Nov. 8, 2007 until Jan. 3, 2008, and (2) making
unilateral changes in the unit employees' Posted on Friday, June 19, 2009 at 8:32 am

For any Virginia business owner who has attempted to navigate the
State Corporation Commission's (SCC) website, the news of a more user
friendly experience is certainly reason to rejoice! According to an
article in Virginia Lawyers Weekly, the SCC has launched the first
wave of a "suite of electronic filing capabilities." Although the new
"eFile" functionality is currently limited to changing registered
agent information, Virginia businesses can expect several additional
changes in the coming months. For Posted on Saturday, February 6, 2010 at 5:04 pm

As noted in previous posts on Virginia Business Law Update, this blog
is running a six-part series on Virginia business litigation claims.
This week, the featured Virginia business litigation claim is breach
of non-compete agreements. In this age of intense competition,
businesses have a legitimate interest in preventing former employees
from gaining a competitive advantage by using the relationships,
information or skills acquired during their employment with the
company. Non-compete and non-solicitation Posted on Saturday, February 6, 2010 at 5:04 pm

With forecasts for the Northern Virginia region calling for nearly two
feet of snow, many Virginia business owners will have to decide
whether to take a "snow day." For small businesses in particular, this
decision is confounded by operational and logistical factors,
including the absence of a means to timely communicate with employees
(to advise them of a closing) and the potential disruption to critical
business processes. Instead of playing the "should I close" decision
by ear, businesses should take the Posted on Saturday, February 6, 2010 at 5:04 pm

In my last post, I discussed the necessity of documenting many aspects
of an individual's employment. A number of comments were made to me
that generating such documentation would be an administrative
nightmare, and that there was insufficient time in the workday to do
so. The following may help to illustrate the importance of
documentation for all of the naysayers out there. For several years, a
small company employed a female, minority worker who was in her
mid-40's. Approximately two years ago, the Posted on Saturday, January 23, 2010 at 12:23 am

Yesterday in Massachusetts, Scott Brown (the Republican) defeated
Martha Coakley (the Democrat) in a special election to fill the
unexpired term of the late Senator Ted Kennedy. As a result, the
Democrats have lost their supermajority in the Senate which will
likely undermine health care reform and other items on the Obama
agenda. One of the definitive upsides to the Brown victory is its
impact on the Employee Free Choice Act ("EFCA"). Many, with the
exception of organized labor, seem to agree that EFCA is Posted on Saturday, January 23, 2010 at 12:23 am

During the financial upheaval that has occurred over the last couple
of years, more and more employers have been discharging workers. At
one point, the rate of unemployment exceeded 10% nationwide.
Regardless of whether the discharge occurs in an employment-at-will
State, it is critical that the reasons for separation are documented.
These days, it is simply not enough for an employer to fire someone
without a reason. Granted, the laws in employment-at-will States
generally provide that an employee may be Posted on Tuesday, December 29, 2009 at 4:00 pm

Employers - the EEOC has issued an updated "Equal Employment is the
Law" workplace poster to reflect the recent changes in Federal Labor
laws. Specifically, the new poster includes updated information on the
ADA Amendments, some updated DOL language, and information on the new
Genetic Information Nondiscrimination Act (GINA) which goes into
effect November 21. The EEOC website has information on ordering new
posters, but also has a downloadable version of the new poster, and a
downloadable supplement to the Posted on Monday, December 21, 2009 at 1:00 am

The Fourth District Court of Appeals in Illinois has broken from the
rest of the State and done away with a 30-year-old test used to
analyze noncompete agreements. A little background on noncompetes
before we go any farther. A noncompete, of course, is an agreement
betwen an employee and a company that the employee won't compete
directly with the employer if he quits. Usually, the agreement is
limited to a certain geographic area, a certain amount of time, or
both. Okay, so here's where things get Posted on Thursday, October 29, 2009 at 8:34 pm

In Illinois, as elsewhere, the state's school districts have their own
Labor Relations Acts and Boards. Illinois teachers' unions are
certified, and their claims of unfair labor practices are heard, by
the Illinois Education Labor Relations Board (or IELRB). It has been
that way for many years, and while the body of decisions by the IELRB
grows, it's you'd think that the jurisdiction of the Board is rarely
questioned. Schools are in, everyone else is out. Of course, no issue
of labor & employment law is Posted on Friday, October 16, 2009 at 8:33 am

Our friends at Employee Benefit News Legal Alert published one of
those "must read" articles. Attorney Cynthia Marcotte Stamer writes
Tough Times Are No Excuse for ERISA Shortcuts. Ms. Stamer correctly
points out that irrespective of the business hardships that plan
sponsors are facing, the Department of Labor (DOL) will aggressively
pursue enforcement if they perceive that a plan sponsor has failed
take the necessary steps to protect plan participants. Here are three
key points she makes: Many employers Posted on Saturday, February 6, 2010 at 8:12 am

That was the title of a blog post I wrote exactly one year ago today
when Brightscope, Inc., an independent data analytics company launched
their 401k ratings disclosure website. It featured the BrightScope
Rating™, a quantitative 401(k) plan rating developed by BrightScope,
Inc. in partnership with some of the country's top independent
fiduciaries, finance professors, and 401(k) experts. BrightScope
Ratings™ take into account over 200 unique data inputs per plan and
calculate a single numerical score to Posted on Friday, January 29, 2010 at 11:02 pm

That's the title of a press release I received this week from Cogent
Research, a market research and strategic consulting firm based in
Cambridge, Massachusetts about the results of their 2010 Investor
Brandscape™ report. According to Cogent, Fidelity Investments has
forfeited its position as both the number one distributor and mutual
fund provider to key rivals Charles Schwab and Vanguard. Cogent said
it is because of significant shifts in brand perceptions, household
penetration, as well as changes in Posted on Saturday, January 23, 2010 at 5:20 pm

A former student of the Peddie School in New Jersey was awarded
$64,000.00 by a jury for her claim that the school was liable for a
teacher's action in violation of the New Jersey Law Against
Discrimination. Posted on Saturday, January 30, 2010 at 6:00 pm

The New Jersey Supreme Court on Thursday gave employers, and
management-side employment lawyers, a victory by putting a limit on
suits by fired employees under the New Jersey Law Against
Discrimination based on post-discharge retaliatory conduct. The Court
stated that the "limitations clock begins to run on a discrete
retaliatory act, such as discharge, on the date on which the act takes
place." The unanimous New Jersey Court reversed an appeals court that
had allowed a suit under the "continuing violation Posted on Thursday, January 21, 2010 at 3:46 pm

Employment lawyers in New Jersey will be following this case closely.
The New Jersey Supreme Court has agreed to hear an appeal by a former
Curtiss-Wright Corp. employee whose $10.6 million sex-discrimination
judgment was reversed because she shared confidential company records
with her lawyer. The issue before the court is whether a worker's
acquiring of company information in the normal course of her job, and
communicating it to her employment attorney in her discrimination
case, is protected activity for Posted on Monday, December 21, 2009 at 10:18 pm

The Fourteenth Court of Appeals in Houston recently held that it is
the date the employee is provided notice of termination, and not the
termination date itself, that commences the statute of limitations in
a breach of contract case. You can read the Memorandum Opinion in
Malallah v. Noble Logistic Services, Inc. here. Bader Malallah entered
a three year employment contract with Noble Logistic Services, Inc.
("Noble") that could be terminated earlier, without notice, for
certain enumerated acts or Posted on Friday, February 5, 2010 at 7:33 pm

In Physio GP, Inc. v. Naifeh, the Fourteenth Court of Appeals in
Houston held, in a case of first impression, that an individual cannot
be held personally liable for a Sabine Pilot cause of action. A Sabine
Pilot or public policy wrongful termination claim is a narrow
exception to the general rule of at-will employment in Texas. A claim
may arise when an employee is terminated by his employer solely for
refusing to perform an illegal act. This type of claim was named after
the first Texas Supreme Court case Posted on Friday, February 5, 2010 at 7:33 pm

I've written several posts on the potential pitfalls that may befall a
company that mistakenly classifies workers as independent contractors.
You can see those posts here and here. A recent bill introduced in
Congress would make it even more difficult to classify workers as
independent contractors and would require companies to file more
information with the IRS when independent contractor status is
claimed. In summary, the Taxpayer Responsibility, Accountability and
Consistency Act of 2009 would: Increase Posted on Thursday, January 21, 2010 at 7:39 pm

Last week Tony Gardner, President and CEO of iRacing, was interviewed
by SIRIUS radio program Tradin' Paint. Tony discussed everything
NASCAR fans should know about iRacing how they can become part of the
action. He also described the upcoming NASCAR iRacing Drivers World
Championship, which features the 50 top-rated oval drivers currently
racing in iRacing's Pro Series and [...] Posted on Thursday, February 4, 2010 at 2:44 am

The Massachusetts Life Sciences Center (MLSC) has announced the launch
of its new Small Business Matching Grant (SBMG) Program. The program
is designed to support early-stage life sciences companies and grow
employment opportunities, promote manufacturing and commercialization,
and stimulate innovation across the Commonwealth. The primary
objective of the SBMG is to provide grants to commercialization-ready
life sciences [...] Posted on Thursday, February 4, 2010 at 2:44 am

Late last week, MBBP client MPAY, Inc. reported record-breaking sales
growth for 2009. MPAY is a nationwide leader in providing software and
services to independent payroll providers and businesses. Two of their
products, Payentry.com™ and TimeForce@Payentry.com™ were extremely
successful for the company in 2009. Payentry.com™, a web-based
payroll product, increased over 22% in check totals and
TimeForce@Payentry.com™, MPAY's [...] Posted on Monday, February 1, 2010 at 1:35 am