New Philly Law Rewards Employers for Health Benefits to LGBT Employees

emeyer@dilworthlaw.com (Eric Meyer) — Tue, 21 May 2013 09:32:00 -0400

Earlier this month, Philadelphia Mayor Michael A. Nutter signed legislation that provides a credit to employers who offer health benefits to same-sex couples, life partners and transgender employees.

It took less than 50 days from the date that City Council introduced this bill for it to become law. This press release from the City of Philadelphia notes the other

California Court Ruling Provides Reminder That Exempt Employees Must Be Paid on a “Salary Basis”

rlargent@cdflaborlaw.com (Robin Largent) — Mon, 20 May 2013 16:05:00 -0400

There has been a lot of litigation in California concerning the exempt status of various categories of employees, with plaintiffs' attorneys filing class action after class action seeking to recover four plus years of overtime compensation stemming from employers allegedly misclassifying employees as exempt from overtime compensation. Typically, these claims are premised on an argument that the employees' job duties (as opposed to the amount or manner of compensation paid to the employees) do not meet the test for exemption. A decision hand down today by a California Court of Appeal serves as a reminder that failure to pay exempt employees on a salary

Teacher Was "Just Venting" On Facebook

mdibianca@ycst.com (Margaret (Molly) DiBianca) — Mon, 20 May 2013 12:44:00 -0400

Teachers' use of social media is an ongoing problem across the country. Teachers are given little, if any, guidance about what is and is not appropriate online conduct. School districts, in turn, are left to decide the rules on an ad hoc basis. And uncertainty breeds disaster.

Cases of

Employee vs. Independent Contractor: Do You Know the Difference?

jth@kjk.com (Jon Hyman) — Fri, 17 May 2013 15:54:00 -0400

Employers take a risk when they classify someone performing services for them as an independent contractor instead of an employee. Because employers owe contractors far fewer obligations than employees, employers risk each of the following if a court determines that a misclassification occurred:

Unpaid overtime.
Unpaid taxes.
Un-provided benefits.
A discrimination claim, or claims under other laws that protect employees but not contractors (i.e., the FMLA).

Do you know, however, how to spot the difference?

Third Circuit Holds Obama Recess Appointment Unconstitutional

miles.phil@gmail.com (Philip Miles) — Fri, 17 May 2013 09:40:00 -0400

In Noel Canning v. NLRB the D.C. Circuit held that President Obama's "recess" appointments to the NLRB were unconstitutional. For a rundown of the implications of this holding, see here. I warned you that the Third Circuit was also looking at this issue also. Well guess what?

Yesterday, the Third Circuit dropped the hammer. In New Vista Nursing v

Employment Law and Human Resources Cumulative Case Briefs

Robert.Martin@placeholder.com (Robert A. Martin) — Thu, 16 May 2013 19:00:00 -0400

This regularly-updated summary of recent Employment Law decisions and Human Resources insights provides updates for New Mexico and the Tenth Circuit cases, plus some cases from other jurisdictions with persuasive reasoning to be aware of. The report is compiled by Employment Law Attorney Robert A. Martin, who briefs and summarizes important recent decisions. It is updated several times a month, so check back often for new versions.

Please click on the Attachment: link at the top of the post to view or download the complete Employment Update (Note: the attachment is a very long document (600+ pages) and will take several seconds to complete downloading).

Who Owns Work-Related Social Media?

lisa.stam@bakermckenzie.com (Lisa Stam) — Thu, 16 May 2013 11:36:00 -0400

Who owns the social media content created and maintained in the course of employment? Work product is traditionally the proprietary interest of the employer. But there's something different about social media content.

A blog created by a company employee during company time on a company computer with a focus on the company's products may be straightforward - the blog and its content are owned by the company.

LinkedIn: Where the battle will likely take place

But what about LinkedIn? I've blogged about the @PhoneDog_Noah case and the Angelina Jolie's double masectomy. Why an apparently uneventful preventive surgery on an actress is the number one story in the world is a riddle I have yet to solve. I have, however, nailed down an employment law tie-in!

You can't spell Angelina without GINA (if you rearrange some letters)! The key here is the reason Ms. Jolie had the operation:

[T]he truth is I carry a "faulty" gene, BRCA1, which sharply increases my risk of

Third Circuit: President Obama’s NLRB Recess Appointments Unconstitutional

Labor.Employment@lnstaff.com (LexisNexis Labor & Employment Law Community Staff) — Thu, 16 May 2013 10:41:00 -0400

The United States Court of Appeals for the Third Circuit today in a 2-1 decision invalidated a number of orders of the National Labor Relations Board in NLRB v. New Vista Nursing And Rehabilitation [an enhanced version of this opinion is available to lexis.com subscribers], holding that the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3., refers only to intersession breaks of the Senate and not to intrasession breaks. The court held that, because one Board member was invalidly appointed during an intrasession

Employment Law Blog Carnival, We Are Family Edition

ballmand@ballmanfirm.com (Donna Ballman) — Wed, 15 May 2013 18:40:00 -0400

It's time for me to host the ever-enlightening Employment Law Blog Carnival, that wonderful monthly collection of the best employment and HR blogs in the blogosphere. Because I hosted this time last year, I'm not doing yet another tribute to Mother's Day. Instead, I looked for a less obvious holiday to celebrate with this new edition of ELBC.

May is National Family Month, so welcome to the We Are Family edition of the Employment Law Blog Carnival.

Lorene Schaefer in Win-Win HR points out that we aren't too different from our monkey relatives, in that we know when we're slighted and don't appreciate it. Her

How Much Does It Cost to Defend an Employment Lawsuit?

jth@kjk.com (Jon Hyman) — Tue, 14 May 2013 12:59:00 -0400

Last Friday I had the pleasure of appearing on Huffington Post Live, in a segment entitled, "You're Fired! No really." We discussed the current state of employment at-will, and whether American workers need greater protections from being terminated without just cause.If you've read my blog for any length of time, you know what I have some pretty strong feelings on this topic. Heck, I've even written an entire book on this issue of employer rights.

If you missed the show, you can watch it here

The Continuum of Dispute Resolution in the Workplace

Lorene@OneMediation.com (Lorene Schaefer) — Mon, 13 May 2013 17:59:00 -0400

Today's blog is about dispute resolution. As a general matter, dispute resolution refers to one of several different processes used to resolve disputes between parties, including negotiation, mediation, arbitration, and litigation.

A recent discussion I had with a group of business people at various stages of their careers is the genesis for this blog posting. In the discussion, we were talking about the different dispute resolution processes

State and Federal Governments Struggle over Health Care

StateNet@placeholder.com (State Net) — Mon, 13 May 2013 10:43:00 -0400

The Affordable Care Act, the Obama administration's vaunted plan for overhauling the nation's health care system, will cost more, insure fewer people and probably take longer to implement than originally planned.

States and the federal government are struggling to meet the deadlines for creating on-line marketplaces, known as exchanges, in which individuals and families will be able to purchase affordable health insurance policies. The exchanges are supposed to begin enrolling customers by Oct. 1, 2013, and be fully operational next January. According to the Kaiser Family Foundation, states are facing "serious challenges" and

DC Circuit Strikes Down NLRB Poster Requirement

miles.phil@gmail.com (Philip Miles) — Fri, 10 May 2013 17:52:00 -0400

The D.C. Circuit Court of Appeals took another shot at President Obama's NLRB yesterday in Nat'l Ass'n of Mfrs. v. NLRB (opinion here) [an enhanced version of this opinion is available to lexis.com subscribers]. The Court vacated the NLRB's poster requirement, primarily under s 8(c) of the NLRA.

Section 8(c) did most of the heavy lifting

House Passes Comp Time Law

ehopson@wyattfirm.com (Edwin Hopson) — Fri, 10 May 2013 17:44:00 -0400

On May 8, 2013, the U.S. House of Representatives passed the Working Families Flexibility Act of 2013 (H.R. 1406), a law that would amend the Fair Labor Standards Act of 1938 to give employees the opportunity to accrue paid time off or "comp time" for working overtime hours in lieu of receiving overtime pay.

The bill provides as follows:

Allows employers to offer employees a choice between cash wages and accruing comp time for overtime hours worked during a workweek.

Protects employees by requiring the employer and the employee to complete a written agreement to use comp

EEOC Signals Increased Focus on Employer-Sponsored Wellness Programs

mjzackin@mintz.com (Martha J. Zackin) — Fri, 10 May 2013 17:31:00 -0400

A majority of US employers offer some sort of wellness program designed to reduce the cost of health insurance and healthcare costs, and to improve the health and well-being of employees. However, unless care is taken, even well-intentioned wellness programs may violate federal law.

The EEOC held a public meeting on May 8 to discuss the interplay of employer-sponsored wellness programs and federal anti-discrimination laws. Invited panelists discussed the various ways in which wellness programs could violate the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Health Information Portability and Accountability Act, and

DC Circuit Invalidates NLRB Notice Rule on Free Speech Grounds

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Fri, 10 May 2013 08:23:00 -0400

On May 7, 2013, the United States Court of Appeals for the District of Columbia struck down the National Labor Review Board's ("NLRB") notice rule, which requires employers under its jurisdiction to display posters notifying employees of their rights under the National Labor Relations Act ("NLRA"). Nat'l Assn of Mfrs v. NLRB, Case No. 12-5068 (D.C. Cir., May 7 2013) [an enhanced version of this opinion is available to lexis.com subscribers]. The NLRB's August 2011 rule

NLRB "Advice" Concerning Employer Investigations

john@demolaw.com (John Holmquist) — Tue, 07 May 2013 17:45:00 -0400

In Verso Paper, the Division of Advice reviewed an employer's confidentiality rule and found it to be unlawfully overbroad. The rule was overbroad because it did not provided for confidentiality on a case by case basis consistent with the Board's ruling in Banner Health System, 358 NLRB No. 93(2012). To justify confidentiality, the Board in Banner Health held that an employer must show more than a generalized concern with protecting the integrity of its investigations. An employer must determine whether witnesses need protection; whether evidence is in danger of being

Third Circuit: Shareholder Not "Employee" Under Title VII

miles.phil@gmail.com (Philip Miles) — Mon, 06 May 2013 17:07:00 -0400

Earlier this week, the Third Circuit issued its opinion in Mariotti v. Mariotti Building Products, Inc. [an enhanced version of this opinion is available to lexis.com subscribers], holding that a shareholder was not an "employee" under Title VII.

The plaintiff was a shareholder-director in the family business. One day, he had a "spiritual awakening" that was not well received by his family members and fellow shareholders

Employer Hit with Unpaid Vacation Wages Even Though Union Agreed Vacation Was Properly Paid under CBA

rlargent@cdflaborlaw.com (Robin Largent) — Mon, 06 May 2013 12:31:00 -0400

California employers should all be aware that California law requires employers to pay out all accrued, but unused, vacation pay immediately upon termination of employment. In other words, use it or lose it policies and/or policies that provide for forfeiture of vacation on termination of employment are illegal in California. Employers who fail to timely pay vacation wages on termination of employment are liable not only for the actual amount of unpaid vacation wages, but also for "waiting time penalties" of a full day's regular wages for each day the payment is late, up to 30 days. There is, however, an exception to the rule prohibiting

Fertilizer Plant Explosion Reveals Regulatory Flaws

StateNet@placeholder.com (State Net) — Mon, 06 May 2013 08:51:00 -0400

A week after the explosion at the West Chemical and Fertilizer Company plant in West, Texas killed at least 15 people and destroyed homes and buildings - including a nursing home and a middle school - within a five-block radius, authorities still didn't know exactly what caused the blast. What they did know, however, was that despite being subject to regulation by seven separate agencies - the Occupational Safety and Health Administration, the Environmental Protection Agency, the Department of Homeland Security, the U.S. Pipeline and Hazardous Materials Safety Administration, the Texas Department of State Health Services, the Texas Commission on Environmental

Non-Compete Agreements Can't Be Used to Prevent Competition

ballmand@ballmanfirm.com (Donna Ballman) — Fri, 03 May 2013 15:10:00 -0400

Whether you work in the copy room or in a corner office, you may have been presented with something called a Non-Competition Agreement. Or maybe it was called something sneakier, like a Confidentiality Agreement or Intellectual Property Agreement. Whatever it was called, it said you can't work for a competitor of the company for a year or two after you leave.

If you haven't been forced to sign one yet, beware. They're all the rage with management these days. Physicians, managers, executives, professionals and employees are often given the choice: sign or be fired.

While companies claim all kinds of reasons why they want a

Who Owns Work-Related Social Media?

Third Circuit: President Obama’s NLRB Recess Appointments Unconstitutional

Employment Law Blog Carnival, We Are Family Edition

How Much Does It Cost to Defend an Employment Lawsuit?

The Continuum of Dispute Resolution in the Workplace

State and Federal Governments Struggle over Health Care

DC Circuit Strikes Down NLRB Poster Requirement

House Passes Comp Time Law

EEOC Signals Increased Focus on Employer-Sponsored Wellness Programs

DC Circuit Invalidates NLRB Notice Rule on Free Speech Grounds

NLRB "Advice" Concerning Employer Investigations

Third Circuit: Shareholder Not "Employee" Under Title VII

Employer Hit with Unpaid Vacation Wages Even Though Union Agreed Vacation Was Properly Paid under CBA

Fertilizer Plant Explosion Reveals Regulatory Flaws

Non-Compete Agreements Can't Be Used to Prevent Competition

Labor & Employment Law Community Blogs

Four Reasons Your Employment Lawyer Thinks Firing Should Be a Last Resort

The NLRB and the Law Firm as an Employer

Where the Rubber Meets the Road: Fourth Circuit Says Only Those Allegations Included in a Plaintiff’s EEOC Charge Are Fair Game in a Title VII Lawsuit