Cheryl Orr and Heather Sager Contribute Articles to The Recorder’s Special Issue on Privacy

Posted on July 31st, by Editor in Counseling & Compliance Training. Comments Off on Cheryl Orr and Heather Sager Contribute Articles to The Recorder’s Special Issue on Privacy

Partners Cheryl Orr and Heather Sager contributed articles in today’s special section on Privacy in The Recorder.  Cheryl’s article, Employer’s BYOD dilemna, looks at the issues and approaches employers are taking as employees use dual devices, i.e. one device for both work and personal use.  Heather’s article, Why can’t we be ‘friends’?, looks at what companies need to know when drafting their social media policies.  Copies of both articles are available via this link.


New Jersey District Court Allows Plaintiff to Proceed to Trial on Claim of Unlawful Discharge, Dismisses Claims of Handicap and Discrimination

Posted on July 31st, by Editor in Counseling & Compliance Training. Comments Off on New Jersey District Court Allows Plaintiff to Proceed to Trial on Claim of Unlawful Discharge, Dismisses Claims of Handicap and Discrimination

By: Jerrold J. Wohlgemuth

The New Jersey District Court in St. Cyr v. Brandywine Senior Living LLC, recently granted summary judgment to the employer dismissing the plaintiff’s causes of action for handicap and race discrimination, but allowed the plaintiff to go to trial on her claim that she was unlawfully discharged in violation of the FMLA in retaliation for asking for a medical leave of absence because she was fired only two days before the leave of absence was to begin.  In granting summary judgment on the claim of handicap discrimination, the court determined that the plaintiff, who suffered from arthritis, was not “handicapped” under the NJLAD because the condition, which  was alleviated with medication, did not interfere with her ability to perform her job, and because she never asked for an accommodation for the condition.  The court rejected her claim … Read More »


New Jersey District Court Denies Employer’s Motion to Dismiss Plaintiff’s Cause of Action After Employee’s Supervisor Gains Unauthorized Access to Employee’s Facebook Account

Posted on July 30th, by Editor in Counseling & Compliance Training, Crisis Management. Comments Off on New Jersey District Court Denies Employer’s Motion to Dismiss Plaintiff’s Cause of Action After Employee’s Supervisor Gains Unauthorized Access to Employee’s Facebook Account

By: Jerrold J. Wohlgemuth

In Ehling v. Monmouth-Ocean Hospital Service Corp., the District Court in New Jersey recently denied the employer’s motion to dismiss the plaintiff’s cause of action for invasion of privacy in connection with a supervisor having gained unauthorized access to her private Facebook account.  The plaintiff nurse, who was also the union president at the hospital, had posted comments on her Facebook wall about the news story out of Washington, D.C. in 2009 concerning the killing of a security guard at the Holocaust Museum by a white supremacist in which she expressed her opinion or rant that the paramedics in D.C. should have let the shooter die rather than help him after he was shot during the incident:  “He survived [and] I blame the DC paramedics.  I want to say 2 things to the DC  medics.  1.  WHAT … Read More »


Federal Judge Rules for Nurses in Multi-Million Dollar Class Action for Unpaid Overtime

Posted on July 27th, by Editor in Wage/Hour Class Actions. Comments Off on Federal Judge Rules for Nurses in Multi-Million Dollar Class Action for Unpaid Overtime

By:  Jerrold J. Wohlgemuth

A federal judge in Pennsylvania has signed off on a multi-million dollar settlement of a class action lawsuit for unpaid overtime brought by registered nurses against a number of hospitals affiliated with the Lehigh Valley Hospital and Health Network.  The nurses claimed in their lawsuit, which was filed in January 2010, that the Hospitals violated the FLSA and Pennsylvania wage law by paying them on a per-shift basis, failing to compensate them for reporting early or remaining on duty after their shifts ended, and also failing to pay for work performed during lunch periods or while attending training.  The $4.5 million settlement provides more than $2.5 million to the more than 2,000 nurses who joined in the lawsuit.  This is a significant development for hospitals and other health care providers who pay nurses on a per-shift basis.  … Read More »


U.S. Supreme Court to Hear Arguments in Case that Could Have Significant Impact on Strategies Available to Defend FLSA Collective Actions

Posted on July 26th, by Editor in Wage/Hour Class Actions. Comments Off on U.S. Supreme Court to Hear Arguments in Case that Could Have Significant Impact on Strategies Available to Defend FLSA Collective Actions

By: Marion B. Cooper and Joshua Rinschler

The United States Supreme Court recently granted certiorari of a decision by the Third Circuit Court of Appeals, Symczyk v. Genesis HealthCare Corp., 656 F.3d 189 (3d Cir. 2011), a case that could have a significant impact on employers’ litigation strategy in putative FLSA collective actions.  The Third Circuit in Symczyk held that a collective action brought under the FLSA is not rendered moot when the defendant makes a Rule 68 offer of compromise in full satisfaction of the individual claim to a putative representative before the class representative moves for “conditional certification” and before any other plaintiff opts into the action.

Under the FLSA, an employee may file a “collective action” against an employer on behalf of himself and other similarly situated employees.  Unlike traditional class actions, however, the FLSA requires that the “similarly situated” … Read More »


Georgia’s Pro-Employee Restrictive Covenant Law Is Back (If Only Briefly)

Posted on July 13th, by Editor in Crisis Management. Comments Off on Georgia’s Pro-Employee Restrictive Covenant Law Is Back (If Only Briefly)

By: David J. Woolf

Just when it seemed safe for companies with employees in Georgia to try to enforce their restrictive covenant agreements, the Eleventh Circuit has brought back to life – if only for one last hurrah – the old Georgia law that made non-competition and other restrictive covenant agreements virtually impossible to enforce.  The Court did so in Becham, et al. v. Synthes USA, et al., No. 11-14495, 2012 U.S. App. LEXIS 11225 (11th Cir. June 4, 2012), by holding that Georgia’s first attempt to re-write the State’s non-competition law was unconstitutional and that the second attempt did not apply to the agreement at issue.

The backdrop, well known to those who practice in Georgia, is a frustrating one for employers who have attempted to enforce restrictive covenant agreements.  For years, Georgia statutory and constitutional law disfavored non-competition and other restrictive … Read More »


Who’s The Boss: Third Circuit Announces Joint Employer Test for FLSA Cases, Opening the Door to Broader Exposure to Wage and Hour Liability

Posted on July 12th, by Editor in Counseling & Compliance Training, Wage/Hour Class Actions. Comments Off on Who’s The Boss: Third Circuit Announces Joint Employer Test for FLSA Cases, Opening the Door to Broader Exposure to Wage and Hour Liability

By:  Meredith R. Murphy

On June 29, 2012 the Third Circuit responded for the first time to a question pondered by many employers and courts within its judicial districts: what constitutes a “joint employer” under the FLSA?  In a case captioned In re: Enterprise Rent-a-Car Wage & Hour Employment Practices Litigation, the Third Circuit announced a four part, multi-factor test as an answer to this question.

In the Enterprise case, the joint employer question was raised as a result of the filing of a collective action by assistant branch managers at subsidiaries of Enterprise Holdings, Inc., seeking overtime pay under the Fair Labor Standards Act (FLSA).  While these assistant managers were employees of Enterprise Holdings’ subsidiaries, they nevertheless sought relief from Enterprise Holdings on the theory that it was a joint employer.

In answering whether Enterprise Holdings falls within the category of “joint … Read More »


NLRB Chills At-Will Acknowledgements

Posted on July 11th, by Editor in Audits/Due Diligence. Comments Off on NLRB Chills At-Will Acknowledgements

By: Jerrold J. Wohlgemuth

Having warned employers about the legality of their social media policies under the National Labor Relations Act, NLRB Acting General Counsel Lafe Solomon has apparently turned his attention to at-will employment statements in employer handbooks and manuals.  Employers of union and non-union workforces need to pay careful attention to this development.

Many employers use standard language in their handbooks and manuals in which their employees acknowledge that their employment is at-will; that the employer may terminate the employment relationship at any time, for any reason; and that the at-will employment relationship cannot be amended, altered or modified except by a writing signed by a senior member of management.  The Acting General Counsel apparently believes that such at-will disclaimers may interfere with or chill the right of employees to engage in protected concerted activity.

In a case that did not receive extensive publicity, … Read More »


The Supreme Court Rules: Pharmaceutical Representatives Qualify as Outside Salespersons

Posted on July 9th, by Editor in Wage/Hour Class Actions. Comments Off on The Supreme Court Rules: Pharmaceutical Representatives Qualify as Outside Salespersons

By: Helen E. Tuttle and Dennis M. Mulgrew, Jr.

The Supreme Court recently handed down a decision clarifying the contours of the “outside sales” exemption to the Fair Labor Standards Act (“FLSA”) and settled a split between the U.S. Court of Appeals for the Second and Ninth Circuits.  The Court rejected the attempt by the Department of Labor (“DOL”) to reverse the longstanding industry practice of classifying pharmaceutical sales representatives as exempt employees based on its finding that the DOL had never suggested that the industry practice was improper and had never taken legal action to stop the practice.  The Court observed that to reverse the longstanding practice in that circumstance would be an improper “unfair surprise” to the industry.

In Christopher v. SmithKline Beecham Corp., two pharmaceutical representatives claimed that their employer failed to pay them overtime wages based on an improper … Read More »


New Jersey Court Affirms Sanction Against Law Firm For Losing Emails

Posted on July 6th, by Editor in Counseling & Compliance Training. Comments Off on New Jersey Court Affirms Sanction Against Law Firm For Losing Emails

By: Jerrold J. Wohlgemuth

The New Jersey Appellate Division has affirmed an order imposing sanctions against defense counsel for losing attorney-client emails that were relevant to the question whether a settlement had been reached between the parties and that had been identified on defendants’ privilege log.  When the judge directed that the emails be submitted for in camera inspection, defense counsel replied that they were not available because they had been in the file of the defendants’ prior counsel and could no longer be located.

Plaintiffs’ counsel then retained a forensic expert and incurred over $10,000 in costs and attorneys’ fees to recover the emails from backup tapes on the hard drive of the original defense counsel’s firm.  The judge then determined after in camera inspection that the emails were admissible, and ordered the defendants and the law firm representing them to jointly … Read More »




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