Bill Horwitz Article Published in New York Law Journal

Posted on March 29th, by Editor in Counseling & Compliance Training. No Comments

An article by Florham Park counsel Bill Horwitz titled, “Second Circuit Adopts New Standard Involving Harassment by Non-Employees,” was published in the New York Law Journal.

Bill discussed the case of Summa v. Hofstra University, in which the U.S. Court of Appeals for the Second Circuit addressed the question of whether an employer is liable when non-employees harass its personnel and adopted a standard for answering it.

The case involved claims of sexual harassment and retaliation by a former part-time manager of Hofstra University’s football team, a graduate student named Lauren Summa. Bill says the decision, however, has implications “beyond the world of college sports and applies to harassing conduct by vendors, customers and other third parties.”

The Second Circuit held that Summa could not pursue her sexual harassment claims against the university because it promptly responded to her complaints about football players’ … Read More »


New York City Expected to Pass Expansive Paid Sick Leave Law

By: Lynne Anne Anderson

The New York City Council has reached a compromise that will enable it to pass a paid sick leave law.  Although Mayor Michael Bloomberg objects to the legislation, news outlets are virtually unanimous in predicting that the City Council has enough votes to override his veto.  While federal law does not require employers to provide paid sick leave, Connecticut and some cities (including San Francisco, Seattle and Portland) have adopted paid sick leave laws.  Other cities (including Philadelphia) are considering doing so.  In New York City, even employers that already provide paid sick leave will have to take a close look at the new legislation and reconcile their current sick leave policies with the city’s mandates.  For example, New York City’s proposed law includes anti-retaliation provisions that would prohibit employers from firing employees for using their paid … Read More »


EEOC Warns Employers Against Domestic Violence Discrimination

Posted on March 28th, by Editor in Counseling & Compliance Training. No Comments

By: Alejandra Lara

In its recent guidance titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” the EEOC cautions employers against unwittingly violating Title VII and the ADA in addressing employment-related issues involving victims of domestic violence.

The EEOC reminds employers that while Federal law does not expressly protect domestic violence victims from employment discrimination, such victims may still be entitled to protection under federal employment discrimination laws.

In its guidance, the EEOC provides examples of situations where employers may violate Title VII by engaging in disparate treatment, or applying sex-based stereotypes to victims of domestic violence.  For example, an employer that terminates an employee victimized by domestic violence due to fear of the potential “drama battered women bring to the workplace” may engage in discrimination … Read More »


The DOL’s Made Some Changes to the FMLA; Is Your Policy in Compliance?

Posted on March 26th, by Editor in Counseling & Compliance Training. No Comments

By: Amy Lauricella

Effective March 8, 2013, the Department of Labor (“DOL”) began enforcing a new Final Rule for interpreting the Family and Medical Leave Act of 1993 (“FMLA”).  The DOL’s new Final Rule (published February 6, 2013) makes effective expanded military caregiver and qualifying exigency leave rights created by the National Defense Authorization Act of 2010.   The Final Rule also incorporates an hours of service eligibility requirement created by the Airline Flight Crew Technical Corrections Act of 2009, a federal law which modified FMLA eligibility requirements for airline flight attendants and flight crew members, who largely had been excluded from protected leave due to their unconventional work schedules,

The bulk of the DOL’s Final Rule clarifies military qualifying exigency and service member caregiver leave.  Significant changes to the FMLA regulations resulting from the Final Rule include the following:

Extension of Military Caregiver … Read More »


California Court of Appeal Finds Employment Arbitration Agreement Barring Class Claims Unconscionable

Posted on March 22nd, by Editor in Audits/Due Diligence. No Comments

By: Fey Epling

In Compton v. Superior Court of Los Angeles County, No. B236669 (2d Dist. Mar. 19, 2013), a divided panel of the Second District Court of Appeal reversed the Los Angeles Superior Court’s order compelling arbitration of her wage-and-hour class action complaint.

The Compton majority found the arbitration provision was substantively unconscionable because it was “unfairly one-sided” for four reasons.  First, the agreement exempted the employer from arbitration for injunctive relief on claims related to confidential information and trade secrets.  The majority did not find the carve-out of plaintiff’s claims for workers compensation, unemployment and disability claims sufficient to create parity.  Second, the majority found the imposition of a one-year time limit to arbitrate employee claims impermissibly shortened the applicable statutes of limitations; for a separate, but related reason, the court found this limitation was unfairly one-sided when compared with … Read More »


Locked Out of LinkedIn: A Federal Court Opens the Door To Employer Liability

Posted on March 15th, by Editor in Counseling & Compliance Training, Crisis Management. No Comments

By: Jessica A. Burt

The U.S. District Court for the Eastern District of Pennsylvania determined this week in Eagle v. Morgan, et al., that a terminated employee who was locked out of her LinkedIn account by her employer suffered no legal damages despite successfully proving claims for unauthorized use of her name, invasion of privacy by misappropriation of identity, and misappropriation of publicity.  The district court previously dismissed Dr. Eagle’s federal claims under the Computer Fraud and Abuse Act and the Lanham Act, and retained jurisdiction over the remaining state law claims.

Dr. Linda Eagle, a former founder and executive of Edcomm, Inc., a banking education company that provides services to the banking community, created her LinkedIn account using her Edcomm e-mail address.  Edcomm did not require its employees to create LinkedIn accounts, nor did it pay for accounts … Read More »


NLRB Acting General Counsel Gets One Right

Posted on March 7th, by Editor in Audits/Due Diligence. No Comments

By: Jerrold J. Wohlgemuth

The NLRB’s Acting General Counsel has finally recognized that employees do not read every employer policy through a Section 7 lens.  In a Memorandum from the General Counsel’s Division of Advice dated February 28, 2013, the Acting GC found that Boeing Company did not interfere with or restrain Section 7 activity by maintaining an ethics policy Code of Conduct which prohibits employees from questioning the company’s honesty, morality or reputation.  Instead, the Memorandum concludes that reasonable employees would understand that the company’s Ethical Guidelines are aimed at matters of business ethics, not protected concerted activity.

While recent Board decisions give lip service to the requirements that phrases not be read in isolation, and that policies are unlawful only if employees “would reasonably construe” them as prohibiting Section 7 activity, all too often the opinions read as if the … Read More »


Former Executive’s Race to California Hits a Roadblock in New York

Posted on March 1st, by Editor in Crisis Management. No Comments

By: David J. Woolf

Like many things in life, there is a perceived formula for success in non-compete cases:  If you are the former employee or his or her new or would-be new employer, conventional wisdom dictates that you identify the restrictions early and consider filing a preemptive declaratory judgment action in a state that is hostile to such agreements (provided the facts permit).  California is the most well-known example, but there are others.  The plan works best if the former employee lives in California (or similarly hostile state) or has other significant connections by virtue of his past or intended future employment.  But now, a New York appellate court has thrown conventional wisdom a curve.

Michael Cusack and Peter Arkley were former Aon executives.  They left Aon on June 13, 2011 to pursue lucrative opportunities with a competitor, Alliant Insurance Services.  … Read More »




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