New FCRA Background Check Forms Required January 1, 2013

Posted on September 24th, by Editor in Counseling & Compliance Training. Comments Off on New FCRA Background Check Forms Required January 1, 2013

By: Stephanie Dodge Gournis

Effective January 1, 2013, employers must revise Summary of Rights forms they provide to prospective and current employees as required under the Fair Credit Reporting Act (“FCRA”).

The FCRA is a federal law which applies whenever a covered employer seeks information from a “consumer reporting agency” regarding an individual’s credit, character, general reputation, personal characteristics, or mode of living.  A “consumer reporting agency” is defined quite broadly under the FCRA, resulting in an employer being subject to the FCRA simply by using a third-party vendor to conduct background checks on any of its applicants/employees.

Pursuant to the FCRA, an employer is required to provide a disclosure and obtain written authorization from any applicant/employee prior to conducting a background check.  Should the employer seek to take an “adverse action” against the applicant/employee based on the background check — which, for … Read More »


NLRB Announces its First Formal Ruling on the Legality of Social Media Policies

Posted on September 22nd, by Editor in Audits/Due Diligence, Counseling & Compliance Training. Comments Off on NLRB Announces its First Formal Ruling on the Legality of Social Media Policies

By: Jerrold J. Wohlgemuth

In line with the series of guidelines issued by the Acting General Counsel over the past year, the NLRB has announced its first formal ruling on social media policies, finding that the social media policy of Costco Wholesale Corp. is unlawful because it broadly prohibits online comments “that damage the Company, defame any individual or damage any person’s reputation, or violate the policies” in the employer’s handbook.  358 NLRB No. 106.  The case represents the first ruling by the Board on the legality of social media policies, and follows the Acting General Counsel’s admonition that overbroad policy statements will be held unlawful.

The Board observed in its opinion that in the absence of a disclaimer notifying employees that the rule is not intended to restrict the right to engage in protected concerted activities, the broad prohibition on comments … Read More »


A Litigator’s Perspective on Trade Secret Protection Programs: How to Protect Your Valuable Information Against Rogue Employees

Posted on September 19th, by Editor in Counseling & Compliance Training, Crisis Management. Comments Off on A Litigator’s Perspective on Trade Secret Protection Programs: How to Protect Your Valuable Information Against Rogue Employees

Mark E. Terman, a partner in the Los Angeles office and a member of the Competitive Advantage practice team, authoried the article “A Litigator’s Perspective on Trade Secret Protection Programs:  How to Protect Your Valuable Information Against Rogue Employees,” which was recently published on InsideCounsel.com.  Mark’s article discusses the Uniform Trade Secrets Act and its variations, as well as questions companies should consider when developing their own trade secret program.  Mark also emphasizes that companies should have a program to deter and limit trade secret misappropriation.  “A seeming axiom of trade secret and unfair competition litigation is that the more brazen and dishonest the behavior of the former employee (and perhaps their new employer), the more accommodating a court may be to a company whose proof is less than perfect. By contrast, the thinner a company plaintiff’s proof is, the more … Read More »


Social Media: The Bane of HR Leader’s Existence and How to Manage it

Posted on September 18th, by Editor in Counseling & Compliance Training. Comments Off on Social Media: The Bane of HR Leader’s Existence and How to Manage it

Mark D. Nelson, partner in the Chicago office, authored the article “Social Media: The Bane of HR Leaders’ Existence and How to Manage it” for the fall issue of HR Pulise, the official publication of the American Society for Healthcare Human Resource Administration.  In the article Mark discusses social media concerns for health care organizations, including why a social media policy is necessary, how health care providers can avoid social media issues and NLRB standards for social media policies.  To read the full article click this link:  Mark Nelson – HR Pulse Magazine, fall 2012 issue


Federal Court Holds that FLSA’s “Fluctuating Workweek” Method Violates Pennsylvania Law

Posted on September 13th, by Editor in Audits/Due Diligence, Wage/Hour Class Actions. Comments Off on Federal Court Holds that FLSA’s “Fluctuating Workweek” Method Violates Pennsylvania Law

By: Maria L. H. Lewis and Dennis M. Mulgrew, Jr.

A recent decision out of the Western District of Pennsylvania, Foster v. Kraft Foods Global, Inc., Civ. No. 09-453 (W.D.Pa. August 27, 2012), highlights the challenges employers face in simultaneously complying with both local and national wage and hour regulations.  In Foster, the court held that the “fluctuating workweek” method of overtime compensation – which is expressly permitted by the FLSA – is not permitted under Pennsylvania law.

Under the fluctuating workweek method, an employer pays a nonexempt employee a fixed weekly salary, regardless of the number of non-overtime hours worked.  This method is generally used in industries in which an employee’s hours change unpredictably from week to week based on factors such as customer demand or seasonal variation – e.g., lawn maintenance companies, golf courses, or the travel industry.  In using … Read More »


California Joins Other States in Implementing Laws Governing Employer Access to Employee’s and Applicant’s Social Media Accounts

Posted on September 10th, by Editor in Counseling & Compliance Training. Comments Off on California Joins Other States in Implementing Laws Governing Employer Access to Employee’s and Applicant’s Social Media Accounts

By: Heather M. Sager

California is poised to be on the front lines of implementing laws governing when and if employers can require applicants or employees to divulge their social media passwords and grant employer access as part of the hiring process or in the course of the employment relationship.  Last week, the California Senate voted 28-5 in favor of Assembly Bill 1844, which would prohibit employers from forcing employees and prospective workers to turn over usernames and passwords for their social media accounts and also would ban employers from discharging, disciplining or threatening to retaliate against employees or job applicants who did not comply with such requests.  Of note, the Senate’s proposed amendments clarify that employers may request personal social media information when related to an investigation involving alleged workplace misconduct or violations of the law.  The Senate also amended the bill to … Read More »


Is Relief on the Horizon for California Employers Attempting to Enforce Arbitration Agreements as Class Waivers?

Posted on September 7th, by Editor in Audits/Due Diligence, Wage/Hour Class Actions. Comments Off on Is Relief on the Horizon for California Employers Attempting to Enforce Arbitration Agreements as Class Waivers?

By: Heather M. Sager

In California, a hotbed of wage and hour class and collective action filings, a recent appellate court opinion provides some long-awaited good news for employers attempting to enforce arbitration agreements as class waivers. In Reyes v. Liberman Broadcasting, Inc., plaintiff  Jesus Reyes worked for Liberman Broadcasting, Inc. from April to September 2009.  Pre-hire, Reyes executed an arbitration agreement.  In May 2010, he filed a class action alleging wage and hour violations on behalf of a putative class of security officers.  When it initially answered the Complaint, Liberman failed to raise the issue of arbitration.  In July 2011, Liberman filed a motion to compel Reyes to arbitrate his wage and hour claims as an individual (versus holding a role as a class representative).  The court denied the motion, finding that Liberman had waived its rights via the delay.  This led … Read More »


Third Circuit Addresses The Notice An Employee Must Give Of Unforeseeable FMLA Leave

Posted on September 7th, by Editor in Counseling & Compliance Training. Comments Off on Third Circuit Addresses The Notice An Employee Must Give Of Unforeseeable FMLA Leave

By: William R. Horwitz

On August 3, 2012, in Lichtenstein v. University of Pittsburgh Medical Center, the U.S. Court of Appeals for the Third Circuit addressed the issue of how much information an employee must provide when notifying an employer of unforeseeable leave under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”).  By way of background, the FMLA generally entitles eligible employees to take up to twelve weeks of unpaid leave during any twelve-month period to care for themselves or a family member with a “serious health condition,” such as a condition requiring inpatient hospital care or continuing medical treatment.  An employee only qualifies for FMLA leave if he or she provides sufficient information to permit the employer to determine whether the FMLA applies.  For unforeseeable leave, the regulations require an employee to provide this … Read More »


To Compel Discovery Of A Party’s Social Media Content In Pennsylvania, There Must Be A Hook

Posted on September 6th, by Editor in Counseling & Compliance Training. Comments Off on To Compel Discovery Of A Party’s Social Media Content In Pennsylvania, There Must Be A Hook

By: Kate S. Gold and Aaron M. Moyer

Pennsylvania trial courts have been particularly active in the past few years in issuing opinions regarding how much, if any, of a party’s non-public Facebook and other social media content are subject to discovery in litigation.  A July 2012 opinion issued by Judge Wettick in Allegheny County, Trail v. Lesko, highlights these increasing discovery disputes and outlines the recent trends of the courts addressing the disputes.  As Judge Wettick found, courts have compelled very broad access to social media content in cases where one party has articulated that the publicly available portions of the other party’s social media site contains information relevant to the prosecution or defense of a claim.

Although there are no appellate court opinions on this subject matter in Pennsylvania, there are several trial court opinions.  On the one hand, some of the cases permit very broad access … Read More »


Privacy Rights On Facebook: Are Employees Protected?

Posted on September 5th, by Editor in Counseling & Compliance Training. Comments Off on Privacy Rights On Facebook: Are Employees Protected?

Jerrold Wohlgemuth, counsel in the Florham Park, NJ office, authored the article “Privacy Rights On Facebook: Are Employees Protected?” which appeared recently in Employment Law 360.  Jerry’s article looks at the legal implications of employers having access to and use of employee comments on social media networks such as Facebook.  To read the full article click here.




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