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Showing 6 posts from February 2012.

Ninth Circuit Requires Application of California Law over Contractual Choice of Law Provision

A class of truck drivers filed suit against a home delivery and transportation logistical support services company claiming alleged violations of the Fair Labor Standards Act and various related California labor laws, including failure to pay overtime, failure to pay wages, and unfair business practices. The company defended the claims by arguing that the drivers were not employees, but instead were independent contractors, and pointed to the Independent Truckman's Agreement and Equipment Lease Agreement signed by the drivers. Further, because the Agreement contained a provision indicating that Georgia law was to apply to any disputes relating to the relationship, the company claimed that Georgia law confirmed that the drivers were not employees and thus could not maintain their claims. After motion practice and a bench trial, the district court agreed with the company and found that not only did Georgia law properly apply to the dispute, but that under Georgia law, there is a presumption of independent contractor status and that the drivers could not establish the existence of an employer-employee relationship. The Ninth Circuit Court of Appeals, however, disagreed with the trial court's analysis, at least in part, and reversed the decision. The Court of Appeals found that the district court failed to consider whether applying Georgia law would be contrary to fundamental California policies, and whether California had a materially greater interest in the resolution of these issue than did Georgia. Since the Court of Appeals found Georgia law to directly conflict with California law on the presumptions and burdens involved in the consideration of independent contractor status, and because worker protection is a fundamental public policy in California, the application of Georgia law would be improper. Finding that California law applied to the dispute, the case was remanded with instructions for the district court to reconsider the issues in light of California law. You can read more about the Court's decision and why it ultimately determined that the company's choice of law provision and Georgia law did not apply hereMore ›

Policy Requiring Disclosure of Nature of Illness for Work Absences may Violate ADA

The Equal Employment Opportunity Commission filed a class-action lawsuit against a department store claiming its policy violated the Americans with Disabilities Act (“ADA”). The case came about when an employee was unable to attend work for a few days due to medical illness, and despite having provided a doctor’s note for her absence, the store sought the specific nature of her illness in order to have the absences deemed “excused.” The employee refused to provide the information and claimed the request was unlawful. The store subsequently terminated her employment. Later, the store revised its policies and this requirement was removed.  More ›

DOJ Issues best Practice Advice for Employers Facing I-9 Audits

The Office of Special Counsel for Immigration-Related Unfair Employment Practice recently released advice on best practices for employers to use in response to audits by Immigration and Customs Enforcement (ICE). The Office of the Special Counsel specifically advises that employers need to effectively communicate with employees and unions to assure that the audit process is transparent and not discriminatory. To do this, employers should develop a uniform plan for informing all employees that the employer is subject to an ICE audit. Employers should provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE and treat all workers in the same manner during the audit. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same time frames and the same choice of Form I-9 documents to present. More ›

Dukes’ Applicability may be Limited

A recent opinion from the United States Court of Appeals for the Seventh Circuit demonstrates that the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) may have limited applicability to wage and hour class actions. More ›

First Circuit Holds that Private Companies’ Employees not Entitled to Whistleblower Protections Under SOX

Former employees of private companies that act under contract as advisers to and managers of mutual funds organized under the Investment Company Act of 1940 filed suit against their respective employers for unlawful retaliation after they were terminated. The employees claimed that they were entitled to the whistleblower protection provision within the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1514A) (“SOX”) because they had reported potential fraud and security violations. The employers contested this, arguing that SOX’s protections did not extend to employees of private companies, and filed motions to dismiss the lawsuits.The district court disagreed with the employers, holding that this particular provision of SOX did protect employees of private companies that are contractors or subcontractors to “public companies" (as defined under the Act), where those employees were reporting violations relating to fraud against shareholders. More ›

NLRB Finds Arbitration Provision Violative of NLRA

D.R. Horton, a homebuilder with operations in more than 20 states, began to require each new and current employee to execute a "Mutual Arbitration Agreement" (MAA) as a condition of employment, requiring arbitration of all claims on a individual basis, precluding them from filing joint, class or collective claims addressing their wages, hours, or other working conditions against the employer in any forum.  More ›

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