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BT Currents - Hot Topics in Employment Law
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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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27 Sep 2012 Choose Your Words Carefully When Drafting Social Media Policies

Employees engage in statutorily-protected activity, Section 7 of the National Labor Relation Act explains, when two or more of them act together to improve the terms and conditions of their employment.  Employers are prohibited by the Act from restricting employees from exercising their Section 7 rights.  Employers can sometimes unwittingly violate Section 7.  Say your company is drafting a social media policy and you include a line explaining that employees should not use social media to “disparage” their co-workers because you want to keep your…

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25 Sep 2012 California Supreme Court to Review Class Action Arbitration Waivers in Employment Agreements

As we have been predicting, the issue of class action arbitration waivers has made its way to the California Supreme Court. On Sept. 20, 2012, the Supreme Court granted review of Iskanian v. CLS Transportation of Los Angeles (“Iskanian”), following the Court of Appeal’s decision affirming an order granting the employer’s motion to compel individual arbitration and dismissing the employee’s class claims. Presently, the case will involve three issues: 1.  Did AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), impliedly overrule Gentry v….

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20 Sep 2012 EEOC Educates Teens About Discrimination and Harassment in the Workplace

Do you employ teenagers? Then take note: the EEOC just announced new discrimination and harassment prevention efforts aimed at students who are about to enter the workforce. Specifically, the EEOC, through its Youth@Work initiative, created a video and supplemental classroom guides to help students identify situations and actions that may amount to discrimination or harassment in the workplace. Employers who recruit and hire teens need to be aware that the EEOC is placing special focus on this demographic. Further, the EEOC’s announcement is a reminder that employers should emphasize – especially to those who are new to the workforce – that all…

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17 Sep 2012 To Avoid Employer Liability for Harassment, Keep an Eye on “Supervisors”

The United State Supreme Court on Friday set oral arguments for Nov. 26, 2012, in Vance v. Ball State University, Docket No. 11-556, in which the Court is expected to address the issue of who is a “supervisor” for purposes of employer liability for sexual harassment under Title VII. The question highlights a split among federal circuit courts of appeal on the definition of supervisors, and we provided additional details on the facts of the case in our prior blog entry when the Court granted the petition…

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