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BT Currents - Hot Topics in Employment Law
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18 Oct 2012 Seventh Circuit Sides With Defendants On Eavesdropping Case

Earlier this week, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment for the employer and two individual defendants in an eavesdropping claim brought by a former employee, who was fired after making a threatening telephone call to a colleague at his home.  In Carroll v. Merrill Lynch, the plaintiff, Mary Carroll, was fired as a result of her conduct during a phone call with her co-worker, Jim Kelliher, whom she called at his home on Thanksgiving night.  Upon hearing the exchange…

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16 Oct 2012 High Court Will Not Evaluate Whether Summary Judgment Orders Violate Plaintiffs’ Seventh Amendment Rights

Yesterday, the U.S. Supreme Court denied an Illinois police officer’s petition for review of whether the Seventh Amendment’s right to jury trial is violated when a federal court grants an employer’s motion for summary judgment (Kidwell v. Eisenhauer, U.S., No. 12-226, cert. denied Oct. 15, 2012). Kenneth Kidwell, the petitioner and an Illinois police officer, alleged he was terminated as a result of his criticisms of the police department’s management.  Kidwell argued this was in violation of his First Amendment rights. Ultimately, the Seventh Circuit disagreed…

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16 Oct 2012 Congressional Investigation Targets WARN Act Guidance Issued to Defense Contractors

A congressional investigation has been initiated in response to the Obama administration’s guidance advising defense contractors not to issue budget-driven layoff notices in accordance with federal WARN Act provisions.  The investigation, lead by Rep. Darrell Issa (R-Calif.), who serves as the Chair of the U.S. House of Representatives’ Oversight Committee, seeks correspondence between the White House and various defense firms to determine whether any guidance issued runs afoul of WARN Act requirements and encourages contractors to disregard employment laws. Specifically, with the upcoming November elections,…

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11 Oct 2012 Ohio Supreme Court Reverses Self on Noncompete in Merger Situation

Earlier this year, the Ohio Supreme Court surprised observers in the Acordia of Ohio LLC v. Fishel case by holding that an acquiring company in a statutory merger could not enforce noncompetes entered into with the acquired company by employees who continued to be employed absent clear contractual agreement to that.  Today, the Court in effect reversed itself, coming back into line with the great majority of the states. A summary from the court can be found here.  Historically, in a corporate merger where the acquirer buys…

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10 Oct 2012 Even When You Win, You Might Still Lose: NLRB Strikes Back After Employer Prevails In Federal Court

While we typically defer to the BT Labor Relations Blog when it comes to analysis of “traditional labor” matters, the National Labor Relations Board’s (NLRB) decision in Federal Security, Inc. is worth mentioning here. Federal Security provides armed security guards to public housing sites in Chicago.  The Company fired 19 of its security guards after they staged a “walk out.” The guards subsequently filed an unfair labor practice charge alleging their walk out was “protected concerted activity” under the National Labor Relations Act (NLRA) (i.e., the right for employees to act together…

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04 Oct 2012 NLRB Social Media Decisions Leave Questions for Employers

The NLRB issued its first decision on a social media policy on Sept. 7, 2012 (Costco Wholesale Corp.) finding the employer’s policy of preventing employees from posting statements that “damage the Company, defame any individual or damage any person’s reputation” as being unlawful.  This was to be expected given the ever expanding interpretations of the NLRB’s General Counsel set forth in his three prior Guidance Memoranda on social media policies.  However, on Sept. 28, 2012, the NLRB ruled on its first social media termination case and…

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04 Oct 2012 California Passes Law to Regulate Access to Employees’ Social Media Accounts

California has become the third state to pass a law restricting an employer’s right to require access to applicant’s or employee’s social media accounts as a term and condition of employment. Maryland and Illinois passed similar laws earlier this year. The new law takes effect Jan. 1, 2013. The law does provide that an employer still has the right to require that an employee disclose such passwords if it is relevant to an investigation into employee misconduct or violation of applicable laws.  While most employers do not have…

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03 Oct 2012 California Governor Signs Law Prohibiting Explicit Mutual Wage Agreements

On Sept. 30, 2012, California Governor Jerry Brown signed into law dozens of bills, including AB 2103, which prohibits previously permitted agreements between non-exempt employees and their employers by which the employee could agree to a fixed salary covering all hours worked, including overtime. The purpose of these “mutual wage agreements” is generally to simplify payment to employees that work irregular hours. The bill amends California Labor Code section 515 to read, “that payment of a fixed salary to a nonexempt employee shall be deemed to…

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02 Oct 2012 California Creates First State-Run Retirement Plan for Private Sector Employees

On Sept. 28, 2012, California Governor Jerry Brown signed legislation that will create the nation’s first state-run retirement plan for private sector employees.  The California Secure Choice Retirement Savings Trust is targeted at the more than 6 million low-income, private sector employees whose employers do not offer retirement plans.  The plan will require all employers with more than five employees to withhold 3 percent of employees’ pay unless employees opt out of the plan.  The plan will be administered by a board chaired by the state treasurer, which will select either a private investment firm or the state’s public pension system to invest and maintain the plan’s funds. Supporters of the legislation hail the new retirement plan as providing low-income…

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28 Sep 2012 Federal Court In Washington Rules That Sales Agent Is A Contractor, Not An Employee

Earlier this week the Western District of Washington provided a succinct illustration of the difference between independent contractors and employees. In Daskam v. Allstate (Case No. C11-0131RSL), the court shot down an FLSA claim by an Allstate sales agent who alleged that he had been misclassified as a contractor, and in reality, should have been treated as an employee entitled to overtime wage benefits. The sales agent built his case around the fact that he had a long-term relationship with Allstate and that the company…

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