Labor & Employment Law Community Alerts

New Law Makes Personal Social Media Accounts Off-Limits for Oregon Employers

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Wed, 22 May 2013 15:31:00 -0400

Under current law, an Oregon employer may require employees and applicants to provide access to their personal social media accounts, but that is likely to change very soon. On May 16, 2013, Oregon Legislature passed House Bill 2654 ("HB 2654"), which would make it an unlawful employment practice for employers to require an employee or applicant to provide the employer access to the individual's personal social medial account, request the individual access the account in the employer's presence or direct an employer to add the employer as a contact or friend. HB 2654 also prohibits employers from disciplining employees for refusing to provide access

Mediating Non-Compete Disputes in the Medical Device Industry

FisherPhillips@placeholder.com (Fisher & Phillips LLP) — Wed, 22 May 2013 11:54:00 -0400

by Michael R. Greco

The medical device industry remains a hotbed for non-compete litigation, and the reason is plain and simple. Economic justification. Sales reps develop close relationships with surgeons who purchase millions of dollars worth of medical devices each year. Top reps at industry leaders commonly have multi-million dollar books of business and are often viewed by physicians as an integral part of

EEOC Offers Guidance On ADA Application to Specific Conditions: Cancer, Diabetes, Epilepsy, and Intellectual Disabilities

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Mon, 20 May 2013 17:22:00 -0400

The ADA Amendments Act of 2008 took effect January 1, 2009, and broadened the definition of a disability that makes a person eligible for the protections of the ADA. Taking into account this new, broadened definition of disability, on May 15, 2013, the EEOC issued four "Question and Answer" documents about four common conditions that now clearly qualify as disabilities: cancer, diabetes, epilepsy, and intellectual disability.

The question and answer documents, one for each condition, provide straightforward answers to questions that employers might have about employing and accommodating individuals with one or more of these conditions

Do You Have Your I-9 Ducks in a Row?

Sands.Anderson@placeholder.com (Sands Anderson PC) — Fri, 10 May 2013 18:03:00 -0400

by Annemarie Cleary

Starting May 7, 2013, the U.S. Citizenship and Immigration Services will accept only the new version of the I-9 employment eligibility verification form. You may recall that on March 7, 2013, the USCIS announced that employers should begin using the new version of the I-9 form immediately, but allowed sixty days for employers to update their processes. The new form bears a revision date of "(Rev. 03/08/13)N" and is available for download on the USCIS website.

The

Barran Liebman Alert: NLRB Targets No Solicitation Policy in Retailer's Employee Handbook

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Tue, 07 May 2013 10:08:00 -0400

by Jose Klein

Among the labor law trends that Barran has chronicled in its Electronic Alerts is the National Labor Relations Board's ("NLRB") expansive interpretation of what constitutes an unlawful restraint on an employee's exercise of his or her rights under the National Labor Relations Act ("NLRA"). On April 26, 2013, the NLRB continued that trend with its decision in Target Corporation, 359 NLRB 103 (April 26, 2013).

At issue in the case was a provision in Target's employee handbook

Frankfurt Kurnit Klein & Selz: Monitoring Employee E-mails

FrankfurtKurnitKleinSelz@placeholder.com (Frankfurt Kurnit Klein & Selz) — Tue, 30 Apr 2013 10:36:00 -0400

E-mail can be powerful evidence in a dispute, and whether employers and criminal investigators may use employee e-mail in litigation proceedings is a hot topic. A recent New York federal court decision outlined the current law in this area.

In United States v. Finazzo, 2013 U.S. Dist. LEXIS 22479 (E.D.N.Y Feb. 19, 2013) [an enhanced version of this opinion is available to lexis.com subscribers] the court reaffirmed that employees have little-to-no expectation of privacy in e-mails received through employer accounts where

Are Unpaid Interns Handy Helpers or a Source of Liability?

FoleyandLardner@placeholder.com (Foley & Lardner LLP) — Tue, 23 Apr 2013 15:46:00 -0400

Summer is fast approaching and along with the dog days of pool time, family vacations, and outdoor activities, comes summer break for students. For many companies, this means an influx of potential interns anxious to learn the ins-and-outs of an industry and willing to do so without pay. As we have mentioned in past updates (see here and Amanda K. Caldwell

The United Kingdom ("UK"), comprised of England, Northern Ireland, Wales and Scotland, has a population of over 62 million people, is culturally diverse and remains one of leading financial and service centers of the world. It is often considered the entry way to the rest of Europe and is a major international trading power. For these reasons, many companies decide to do business in the UK. This article will provide a brief overview of some of the basic employment and labor laws in the UK and will also introduce

More Than You Bargained For: Asset Purchase Did Not Shield Purchaser From Predecessor's FLSA Liability

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Tue, 09 Apr 2013 15:42:00 -0400

On March 26, 2013, the Seventh Circuit Court of Appeals held in Teed et al., v. Thomas & Betts Power Solutions that a corporation that purchased another corporation's assets at a receiver's auction was required to satisfy a $500,000 settlement reached between the predecessor company and its employees for wage violations.

Generally, absent some exceptions, when a business purchases the assets of another, the purchaser does not also have to satisfy the other company's liabilities. That is supposed to be the point of structuring the transaction as an asset purchase in the first place. When there is liability based on a violation of a federal statute relating

E.D.N.Y. Judge Reverses Course: Rule 41 Stipulation of Voluntary Dismissal in FLSA Action Does Not Require Court Approval

SheppardMullinRichterHampton@placeholder.com (Sheppard Mullin) — Fri, 05 Apr 2013 12:03:00 -0400

By Sean Kirby and Rachel Tischler*

On February 22, 2013, U.S. District Judge Brian Cogan reversed his prior decision that required a plaintiff to seek court approval of a settlement before her action under the Fair Labor Standards Act ("FLSA") could be voluntarily dismissed. In Picerni v. Bilingual SEIT & Preschool, Inc., No. 12 Civ. 4938 (BMC) (E.D.N.Y. Feb. 22, 2013) [an enhanced version of this opinion is available to lexis.com subscribers], largely upholding President Obama's Patient Protection and Affordable Care Act (the "ACA"), the U.S. government has been moving full-steam ahead on implementation of healthcare reform mandated by the ACA. The ACA places a number of new regulations, restrictions, and requirements on employers, including U.S. companies employing foreign workers

Barran Liebman Alert: Department of Labor Affirms that Disclosing the Identity of a Whistleblower can be Costly for Employers

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Thu, 28 Mar 2013 12:49:00 -0400

On March 15, 2013, the Department of Labor's Administrative Review Board ("DOL") reminded employers about the costly consequences of identifying a whistleblower when it affirmed a $30,000 award against Halliburton, Inc.

In Menendez v. Halliburton Inc., the complainant had raised concerns about accounting practices with company personnel and company auditors. In addition, he confidentially filed a complaint with the Securities and Exchange Commission (SEC). During the course of the SEC's investigation of Halliburton, the company's General Counsel identified the complainant as the whistleblower in email communications to the

The Affordable Care Act: What Employers Need to Do Now to Plan for 2014

Sands.Anderson@placeholder.com (Sands Anderson PC) — Fri, 22 Mar 2013 18:57:00 -0400

by Jessica Rogers

Beginning January 1, 2014, most U.S. citizens and legal residents will be required to have qualified health care coverage pursuant to the Affordable Care Act ("Act"). The Act requires employers defined as "large" to offer that coverage for its "full-time" employees or pay a penalty. Employers must act now to determine if they are required to provide that coverage (or pay a penalty), and to determine which employees are "full-time." The look-back periods for determining large employer

Barran Liebman Alert: The Oregon Supreme Court Isn't Really Attacking At Will Employment

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Fri, 22 Mar 2013 17:13:00 -0400

On March 7, 2013, the Oregon Supreme Court reversed the Court of Appeals' decision in Cocchiara v. Lithia Motors, Inc. [an enhanced version of this opinion is available to lexis.com subscribers], and held that when a job applicant reasonably relies on an offer of at-will employment and that offer is revoked prior to the start of work, the job applicant may have a claim against the would-be employer for damages caused by the reliance. Although it sounds like an ominous change, the case had some unusual facts

Third Circuit Supports Broader Access to Whistleblower Protection in Sarbanes-Oxley Cases

EmploymentLawGroup@placeholder.com (The Employment Law Group) — Thu, 21 Mar 2013 16:22:00 -0400

A federal appeals court made it easier for whistleblowers to claim protection under the Sarbanes-Oxley Act (SOX), adding dramatic weight to the U.S. Department of Labor's landmark ruling that such employees can be protected even if they fail to cite the exact rules their employer may have broken.

Instead, workers may simply show that they had a "reasonable belief" that their company acted fraudulently - or was about to do so - and that they were punished for raising a SOX-related issue

Barran Liebman Alert: Portland Oregon Area Employers Are Now Required to Provide up to 40 Hours of Sick Time to Employees

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Thu, 14 Mar 2013 12:46:00 -0400

Earlier this year, we reported on Portland Commissioner Amanda Fritz's proposal to change Portland's City Code by mandating that employers provide sick leave to employees. Well, it happened. On March 13, 2013, the city council unanimously voted to approve the new ordinance. Portland now joins ranks with cities like Seattle, San Francisco and Washington D.C., which require employers to provide mandatory sick leave to employees. The approved version did have some changes from the original proposal.

Fisher & Phillips: Risks Of "Internship" Claims And Liability Still Increasing

FisherPhillips@placeholder.com (Fisher & Phillips LLP) — Tue, 12 Mar 2013 17:17:00 -0400

by John E. Thompson

We have warned for some time now that businesses and other organizations should think carefully if they are considering the possibility of permitting unpaid internships. What might be described as the internship "season" is fast-approaching, so the time to consider whether and under what circumstances to get involved in these relationships is now.

The Current Landscape

The latest big-splash

Fisher & Phillips: Non-Compete and Trade Secret Review for February 2013

FisherPhillips@placeholder.com (Fisher & Phillips LLP) — Tue, 12 Mar 2013 17:02:00 -0400

by Michael R. Greco

February 2013 was an active month in the world of non-competes and trade secrets, and if we read the tea leaves, it looks like things are only going to get busier. Before I recap some of February's highlights and direct you to some of the best resources out there on the web, let's briefly discuss one reason I think non-compete issues are likely to be pushed to the forefront over the coming months and year -- Warren Buffet. Warren Buffet? That's right, Warren Buffet, and people like him.

Sixth Circuit District Court Concludes Telecommuting Is Not a Reasonable Accommodation under the ADA

Andrew.Fulton@Steptoe-Johnson.com (Steptoe & Johnson PLLC) — Fri, 08 Mar 2013 18:23:00 -0400

by Lindsay M. Bouffard

Marissa Mayer, Yahoo's recently appointed CEO, has come under fire for her decision to end Yahoo's telecommuting program. This drastic measure has Human Resources professionals wondering whether a blanket ban on telecommuting could have legal ramifications. Under the Americans with Disabilities Act ("ADA"), employers are required to provide reasonable accommodations for employees with disabilities. Can working from home ever be a reasonable accommodation under the

Time to Dust Off Your New Hire Packet: New Forms I-9 are Here

Barran.Liebman@placeholder.com (Barran Liebman LLP) — Fri, 08 Mar 2013 17:09:00 -0400

On March 8, 2013, the U.S. Citizenship and Immigration Services ("USCIS") released a new Form I-9, which is used to verify employment eligibility. The new Form I-9 "(Rev. 03/08/13) N" is available here for immediate use.

It has been over three and a half years since USCIS revised the Form I-9, and the 2013 version of the form has several key changes:

The new form now includes data fields for the employee's email address, phone number and foreign passport information, if applicable

9th Circuit Applies Dukes v. Wal-Mart to a Wage/Hour Class Action

Thu, 07 Mar 2013 17:13:00 -0400

On March 4, 2013 the Ninth Circuit issued a second opinion in the action, Wang v. Chinese Daily News (Wang II), in which it reversed the class certification it had previously affirmed and remanded the matter for further consideration of Rule 23(a) commonality and Rule 23(b)(3) predominance. The Wang II decision follows a remand from the United States Supreme Court which had reversed the original Wang judgment in light of the inconsistencies between the lower courts' rulings and the certification standards the Supreme Court announced in

Florida Dermatologist Will Pay $26.1 Million to Resolve Whistleblower Claims of Kickbacks and Unnecessary Surgeries

EmploymentLawGroup@placeholder.com (The Employment Law Group) — Thu, 07 Mar 2013 16:21:00 -0400

In one of the largest-ever settlements with an individual under the False Claims Act, a Florida dermatologist agreed to pay $26.1 million to resolve claims that he accepted illegal kickbacks and billed Medicare for thousands of medically unnecessary skin surgeries.

The Department of Justice agreed to the settlement with Steven J. Wasserman, M.D., in a suit that got its start when a pathologist at a lab involved in the kickback scheme filed a complaint under the whistleblower provisions of the False Claims Act.

The United States later filed its own complaint, but the original whistleblower, Alan Freedman, M.D., is entitled to more than $4 million of the

Keller & Heckman: Wrongful Termination: Mixed Motives and Damages in California (Harris v. City of Santa Monica)

Keller.Heckman@placeholder.com (Keller and Heckman LLP) — Wed, 06 Mar 2013 16:13:00 -0400

I. THERE ARE MOTIVATIONS AND THEN THERE ARE MOTIVATIONS

The Supreme Court of California recently addressed a challenging issue associated with employee wrongful termination actions. The Supreme Court considered the situation where an employee establishes a discriminatory motivation and the employer shows, by a preponderance of the evidence, a legitimate, contemporaneous motivation for the employee's discharge. The Court grappled with the legislative purpose underpinning California's Fair Employment and Housing Act and an employer's right to fire underperforming employees.

The Court, in Harris v. City of Santa Monica,[1] held that in