Showing 20 posts from August 2013.

N.J. Court Holds Remote Texter Could be Responsible for Texting Driver’s Accident

Employers - especially those who provide their employees with cell phones or who allow or permit their employees to use cell phones — should be mindful about a recent case out of New Jersey, as it has potentially far-reaching implications. More ›

Employee’s Settlement Proceeds from age Discrimination Dispute Subject to FICA Tax Withholding

After the financial services employee was terminated, he filed a charge with the Equal Employment Opportunity Commission, claiming that his employer discriminated against him in violation of the Age Discrimination in Employment Act and New York state law. The parties ultimately resolved the dispute for $250,000. When making the payment, the employer withheld taxes pursuant to the Federal Insurance Contribution Act (FICA). The employee claimed that this was improper and filed suit, seeking a refund of the $4,218 withholding. More ›

Employee must Exhaust Administrative Remedies Before Suing Employer

In MacDonald v. Superior Court, the court held that an employee must exhaust statutory administrative remedies before filing suit against an employer.

MacDonald worked for the State of California and the California State Assembly in San Joaquin County. According to his complaint, MacDonald was fired two weeks after complaining that a supervisor had been smoking in the office in violation of the Labor Code and Government Code. More ›

Employers’ Ability to Collect Attorney’s fees in wage Cases Restricted by new Bill

On August 26, 2013, California Governor Jerry Brown signed Senate Bill 462 into law, making it harder for employers to obtain attorney’s fees in certain employment wage claim cases.

Prior to the passage of SB 462, section 218.5 of the California Labor Code required a court in any action brought for the nonpayment of wages, fringe benefits, or health and welfare pension fund contributions, to award reasonable attorney’s fees and costs to the prevailing party who requests such fees and costs at the outset of the case, regardless of whether the prevailing party was the employer or the employee. More ›

Ninth Circuit Allows Parties to Arbitrate Dispute Which had been Litigated for Years

In this recent arbitration decision out of the Ninth Circuit, the employee brought an action against her employer, alleging violations of California’s overtime laws and sought to assert claims on behalf of a class. After several years of litigation, the employee moved to certify a class. The District Court granted the motion in part, narrowing the class which the employee represented. In the same order, the court denied the employer's motion to compel arbitration, which was after the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). The District Court found that the employer had waived its right to arbitration by litigating the action for years without raising the binding arbitration clause contained in the employee's employment agreement. More ›

New Jersey Federal Court Finds that SCA Exception Applies to Facebook Posting Shared by Co-Employee

In the case of Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2:11-cv-03305 (WJM) (D. N.J. Aug. 20, 2013), a federal district court in New Jersey granted an employer's motion for summary judgment, and thereby dismissed the employee's claims of violations of the federal Stored Communications Act, (SCA"), the Family Medical Leave Act, and other claims the employee made under New Jersey law alleging discrimination, invasion of privacy, and protected "whistle blowing" activity. We will focus today on the court's analysis and application of the SCA to the sharing of screen shots from the employee's Facebook postings. Before reaching that discussion, however, the court first had to review the relevant facts.  More ›

Court Finds Volunteer Firefighters to be “Employees” for the Purpose of Determining Eligibility Under FMLA/FLSA

A fire department dispatcher filed suit against his employer under the Family Medical Leave Act (FMLA) for allegedly violating his right to protected leave. The employer filed a motion for summary judgment, arguing that the employee was not eligible for leave under the FMLA because it did not employ at least 50 employees. At that time, the employer employed 41 employees, excluding 25-30 "volunteer" firefighters who were not required to respond to any emergency calls, but who were paid $15 per hour for the time they did spend responding to a call or maintaining equipment. The volunteers were not considered employees by the department, and thus, did not receive health insurance, sick or vacation time, or social security benefits, but the volunteers did have the ability to be promoted or discharged. More ›

Use of Criminal Background Checks Upheld by Federal Judge

In a rebuke to the Obama Administration, a federal judge has held that an employer may use criminal history as a hiring criterion without violating a job applicant’s civil rights.

The case, EEOC v. Freeman, centers around a recent Equal Employment Opportunity Commission (“EEOC”) policy that employers may run afoul of the Civil Rights Act of 1964 by conducting criminal background checks. As we have reported, the EEOC maintains that such checks have a disproportionate adverse impact on minorities. More ›

Employer’s Right to Compel Arbitration, even Where Demand Is Delayed, Affirmed By Ninth Circuit

In Richards v. Ernst & Young, The Ninth Circuit reversed the District Court’s denial of defendant’s motion to compel arbitration of state wage and hour claims asserted by a former employee.

The District Court had determined that defendant had waived its right to arbitration by failing to assert that right as a defense. The Ninth Circuit reversed the judgment on the following grounds.

As the Court noted preliminarily, waiver of the contractual right to arbitration is not favored and, therefore, any party arguing waiver of a contractual right to arbitration bears a heavy burden. More ›

Employers Eyeing First GINA Cases for Further Guidance

The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal to discriminate against employees or applicants based on genetic information. Title II of GINA prohibits the use of genetic information in making employment decision, restricts employers and other entities from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. Over the course of the past few years, the EEOC has filed two cases against employers, alleging violation of this particular Act.  More ›