Showing 17 posts from December 2011.

Separation Agreement Improperly Admitted to Prove Employer’s Liability

Many employers use separation agreements when severing the employment relationship with employees. These releases and/or offers to compromise are often protected by evidentiary rules which prohibit the admission of such documents when they are used to prove liability. More ›

CA Supreme Court Issues Insightful Ruling on Application of Administrative Exemption

Today the California Supreme Court issued its ruling in Harris v. Superior Court. This case dealt with whether or not insurance adjusters were properly classified as exempt employees, or whether they should have been entitled to overtime compensation under the California Industrial Welfare Commission’s Wage Orders and the California Labor Code. More ›

NLRB Finds Symphony Orchestra Musicians “Employees” and Makes way for Petition

On December 27, 2011, the National Labor Relations Board found that musicians at three different symphony orchestras in Pennsylvania, Massachussetts, and Texas were “employees” and not “independent contractors.” In reaching this decision, the Board found that though musicians have some control over their work, once they are selected, orchestra management has great control over the musicians in terms of their work hours, payment schedules, dress codes, and standards of behavior. This ruling overturns the Regional Director’s 2007 Decision and Order in which she found that the musicians in the petitioned-for bargaining unit were independent contractors, and the dismissal of the representation petition. By virtue of the new rulings, the employees may now proceed with their petitions. 

Misclassifying workers as “independent contractors” when they should be “employees” can be costly for employers. 

DOT Releases Final rule Changing Hours-of-Service Safety Requirements

The Department of Transportation’s Federal Motor Carrier Safety Administration announced that it has revised the hours-of-service safety requirements for commercial truck drivers. After seeking input from the public, company owners, drivers, law enforcement, and safety advocates, the final rule reduces the maximum number of hours that a truck driver may work within a week, sets requirements for taking breaks, and contains re-start provisions. More ›

CA Court Finds Employer not Obligated for Reporting Time or Split Shift pay, but Denies Employer Prevailing Party Fees

Under California law, employees may be entitled to additional compensation if they show up for a regularly scheduled shift but then are sent home early, or, if the employee works a split shift in a single day. Pursuant to Cal. Code Regs., tit. 8, § 11040, subd. 5(A), "each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee‘s usual or scheduled day‘s work, the employee shall be paid for half the usual or scheduled day‘s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee‘s regular rate of pay, which shall not be less than the minimum wage. Additionally, a split shift is a "work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods." When an employee works a split shift, one (1) hour‘s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (Cal. Code Regs., tit. 8, § 11040, subd. 2(Q) and 4(C).) More ›

Ninth Circuit to NLRB: Reconsider Whether Employee’s Profanity-Laced Tirade was Protected Activity

The Ninth Circuit Court of Appeals has decided that an employee's string of "F-bombs" can be equivalent to a threat of actual violence. More ›

National Labor Relations Board Issues Final Rules on “Quickie” Union Elections

On December 22, 2011, The National Labor Relations Board (the “Board”) is set to publish final amendments to the procedures for union representation elections. These final amendments ( “Amendments”) follow a heated debate with opponents claiming that the changes allow unions to “ambush” employers with union elections and force employees to make quick, uninformed decisions about whether to unionize. Proponents, on the other hand, hailed the Amendments as an effort to end unnecessary litigation and remove unnecessary delays in effectuating an employee’s free choice. Prior to the Amendments, employees have had at least thirty-two (32) days to consider union representation after an election petition is filed. With the Amendments, the regional director has complete authority to set the time-frame for an election, allowing for an election to occur in as little as ten (10) days after an election petition is filed. More ›

DOL may Require Federal Contractors to have 7% Disabled Workforce

The Department of Labor yesterday announced a proposal to require all federal contractors to set a hiring goal of a labor force with at least 7% disabled workers. The Department already requires federal contractors to provide equal employment opportunities to individuals with disabilities, but this would be the first time that the Department would identify a strict numerical goal for contractors' disabled hiring. According to the DOL's news release : More ›

Illinois Supreme Court Shifts the Playing Field for Non-Compete Agreements

For 36 years, agreements in which Illinois employees agreed to refrain from competitive activity following termination of employment have been judged under a standard requiring the employer to prove that it had a legitimate business interest for restricting post-employment competition. Two Illinois appellate decisions in 2009-2010 rejected this requirement, concluding that it had been invented by the appellate courts and never endorsed by the Illinois Supreme Court. On December 1, 2011, in Reliance Fire Equipment Co. v. Arredondo, No. 11871, the Illinois Supreme Court put that idea to rest, holding that it has been a part of Illinois law for over a century. This was the first Illinois Supreme Court decision considering what business interests could justify a non-compete agreement since the early 1970s. This issue dominated litigation over these agreements throughout that period. More ›

"11th Hour Change of Heart" Forms the Basis for FMLA Claim

As a result of the economic downturn, an employer sought to lay off various staff. A supervisor indicated that it would be “an obvious choice” to eliminate an employee in the communications department because the employee’s duties had changed significantly and the employer had stopped work on one of his core campaigns. After the employee was selected for layoff, a communications director notified the employer of his need for time off for knee replacement surgery. The employer then made a last-minute decision to lay off the communications director in lieu of the previously selected employee. The communications director sued, claiming that the employer had violated the Family and Medical Leave Act (FMLA). The U.S. Court of Appeals for the Seventh Circuit found that the record contained sufficient evidence to create triable issues where: (1) the employer had originally identified a co-worker for termination, but then selected the communications director shortly after he announced intention to take FMLA leave; (2) management backdated a memo to make it appear that the termination decision was not influenced by the leave request; and (3) the employer gave an inconsistent explanation regarding the termination. When an employer decides to terminate an employee not originally slated for layoff, it should make sure that the employment action is accurately and timely documented and that the employer’s thought process is consistent, precise and well-reasoned.

Shaffer v. American Medical Association, No. 10-2117 (7th Cir. Oct. 18, 2011)