In the Second Circuit, Unpaid Overtime Claims Must Allege Specifics

Posted on August 26th, by Editor in Wage/Hour Class Actions. No Comments

By: William R. Horwitz

Earlier this month, the United States Court of Appeals for the Second Circuit, in Dejesus v. HF Management Services, 2013 U.S.App.LEXIS 16105 (2d Cir. August 5, 2013), held that plaintiffs cannot rely solely on vague allegations in asserting claims for unpaid overtime.  In this case, the plaintiff alleged that her former employer had failed to pay her overtime, but her Complaint lacked details such as the amount of overtime she had allegedly worked.  Instead, it simply parroted the language of the Fair Labor Standards Act (“FLSA”).  Affirming dismissal of the Complaint, the Second Circuit agreed with the district court that the allegations failed to state a claim.  This decision makes it more difficult for plaintiffs who lack a basis for an unpaid overtime claim to file a lawsuit in the hope … Read More »

FMLA Protected Leave Now Available To Same-Sex Spouses

By: Marion B. Cooper

United States Secretary of Labor, Thomas Perez, recently issued an internal memorandum to department staff outlining the Department of Labor’s plan to issue guidance documents which will, among other things,  make protected leave available to same-sex couples under Family and Medical Leave Act (“FMLA”).  This action comes as the Department prepares to implement the Supreme Court’s recent decision in U.S. v. Windsor, which struck down the provisions of the Defense of Marriage Act (“DOMA”) that denied federal benefits to legally married same-sex spouses.  Calling it a “historic step toward equality for all American families,” Secretary Perez noted that the Department of Labor will coordinate with other federal agencies to make these changes “as swiftly and smoothly as possible.”

Secretary Perez stated that guidance documents would be updated to remove references to DOMA and to “affirm the availability of … Read More »

Sixth Circuit Approves NLRB Micro-Bargaining Units

Posted on August 21st, by Editor in Counseling & Compliance Training. No Comments

By: Francesco Nardulli

On August 15, 2013, the Sixth Circuit Court of Appeals affirmed the National Labor Relations Board’s (NLRB or the Board) controversial ruling in Specialty Healthcare, 357 NLRB No. 83 (2011), which has allowed the proliferation of what some term “micro-bargaining units.”  This decision makes it easier for unions to organize employees from all industries into smaller units than in the past and makes it challenging for employers to successfully challenge smaller bargaining units.

The Board’s Specialty Healthcare decision overruled its decision in Park Manor Care Center, 305 NLRB 135 (1991), which set forth the Board’s previous test for determining the appropriateness of a bargaining unit in non-acute healthcare facilities.  Park Manor Care established a “pragmatic and empirical community of interest” approach that considered traditional community-of-interest factors, as well as evidence considered relevant by the Board during rulemaking concerning acute-care … Read More »

Significant Illinois and Massachusetts Non-Compete Rulings

Posted on August 20th, by Editor in Audits/Due Diligence, Crisis Management. No Comments

By: Mark E. Furlane and Alan S. King

Two recent cases should give employers pause as to whether their restrictive covenants with their at-will employees are enforceable.  On May 28, 2013, a United States District Court in Massachusetts held that under Massachusetts law, a confidentiality agreement signed by an at-will employee was unenforceable where the employee’s title, duties, remuneration and other terms of employment had materially changed since signing the agreement.  Then, on June 24, 2013, an Illinois Appellate Court held that unless an at-will employee is employed for at least two years, restrictive covenants the employee signed at the beginning of employment are unenforceable for lack of adequate consideration.  Moreover, the Illinois court held it was irrelevant whether the employee quits or is terminated before two years of employment.  While the rulings rely on the applicable state law, they address … Read More »

Employer Liability Under State Medical Marijuana Laws

Posted on August 15th, by Editor in Counseling & Compliance Training. No Comments

By: Cheryl D. Orr and Francesco Nardulli

Across the country, employers in states allowing medical marijuana use have been grappling with whether these statutes impact employer policies concerning drug testing and maintaining a drug-free workplace.  Though the statutes allow for marijuana use for medical purposes (and some for recreational purposes), these statutes do not consistently address the impact of legal medical marijuana on employers, if at all.  And the number of states enacting such legislation is continuing to grow.

Since 1996, 20 states[1] and the District of Columbia have enacted some form of legislation that allows for the non-criminal use of marijuana for medical purposes.  In fact, in the last three years, eight states have passed medical marijuana laws – and Illinois became the 21st jurisdiction to legalize medical marijuana when Governor Quinn signed HB 1 into law on August 1.

As such, companies … Read More »

Are You Ready For Your Company’s Holiday Party?

Posted on August 14th, by Editor in Counseling & Compliance Training, Crisis Management. No Comments

By: Pascal Benyamini

Many companies start planning their holiday party now.  Employers need to know that an employer can be held liable for accidents and injuries caused by their employees who over indulge themselves with alcohol at the party, even if the employee initially made it home safely!  You read that correctly.  The California Court of Appeal, in Purton v. Marriott International, Inc., recently held that the company was potentially liable for a fatal motor vehicle accident caused by one of its employees who had attended the company’s hosted party.  While the employee arrived home safely, the employee left about 20 minutes later to drive another co-worker home.  The co-worker was also intoxicated.  During this trip the employee struck another car, killing its driver.  The trial court granted summary judgment for the employer on the ground that the employer’s potential liability … Read More »

The New National Labor Relations Board: Will It Be More of the Same — Or Worse?

Posted on August 8th, by Editor in Counseling & Compliance Training. No Comments

By: Mark D. Nelson

For the first time in more than ten years, the National Labor Relations Board will have five Senate-confirmed board members and no battles over recess appointments.  However, the new Board will continue to be dominated by pro-union members selected by President Obama.  The three Democratic members are: current Chairman Mark Pearce; Nancy Schiffer, associate general counsel for AFL-CIO; and Kent Hirozawa, chief counsel to Pearce.  The two Republican members are seasoned management-side labor lawyers Philip Miscimarra and Harry Johnson III.

The confirmation of these Board members ends, at least moving forward, the uncertainty caused by the President’s recess appointments which were ruled invalid by the U.S. Court of Appeals for the D.C. Circuit.  For employers, this new Board is not likely to behave much differently than the Board has since the President was elected.  In fact, employers can expect this … Read More »

This Conversation May Be Recorded

Posted on August 7th, by Editor in Counseling & Compliance Training. No Comments

Editors Note:  Frequent LaborSphere contributor Jerrold J. Wohlgemuth recently wrote a post for our friends at LifeSciencesNow.  While directed at the pharmaceutical industry, the message is one that all employers can tand should ake to heart.  Below is the text of the post.  The original may be viewed here.

By: Jerrold J. Wohlgemuth

As the pharmaceutical industry changes, it must take note of the impact such change has on employee relations and the potential for lawsuits.  Big Pharma has shed thousands of jobs in the past few years, with reports showing that the industry has lost more than 6,000 jobs from January –May 2013, up from the approximately 5000 lost in the first 5 months of 2012.  And there will be more to come as the industry continues to react to lab failures, pressure to cut costs and lower prices due to … Read More »

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