Love at Work: Romance Through Contract

As we prepare to celebrate our national day of love and embrace the spirit of St. Valentine that is descending everywhere, employment lawyers have one thing on their minds – Managing Workplace Romances! From out and out prohibition, to managers who look the other way when there’s an occasional “cuddle-n-kiss” in the supply closet, the risk of liability for relationships at work is a real threat. Despite company tactics to thwart liability, romance at work is not fading, but it is ever-present and growing stronger. Companies need a practical approach to dealing with modern views toward inter-office relationships, and the fallout from them that can ensue. Whether the question is “want to get a drink after work” or a more modern crude expression, we recommend the following step-by-step approach from the initial ask and response: Continue Reading

DOL Issues New Guidelines on Joint Employment

The past few weeks have brought us a flurry of activity from federal agencies poised to re-shape the employment landscape, from upending traditional notions of the employment relationship to re-defining what it means to engage in unlawful retaliation. Now, as the dust settles, we will take a look at each of these administrative actions in this four-part series.

In this first installment, we discuss an Administrator’s Interpretation (Interpretation) issued by the U.S. Department of Labor (DOL) concerning joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The Interpretation is perhaps most impactful for companies that rely on third-party contractors, such as staffing agencies, to regularly provide services outside of the companies’ core businesses. According to the DOL, such companies are likely no longer shielded from employment-related liability merely by their use of third-party contractors, but instead are joint employers liable for workplace violations as if they were the primary employer. Continue Reading

NYC Passes Bill Targeting Grocery Industry

The New York City Council’s targeted attacks on specific industries continue unabated. After levying onerous new labor law requirements on car washes this past summer, the Council recently turned its attention to the grocery industry, passing a bill dubbed the Grocery Worker Retention Act (the Act). The Act requires that successor grocery employers retain their predecessor’s employees for a period of 90 days following a change in control. The Act is similar to a 2002 NYC law requiring retention of building service workers.

Specifically, the Act, which was passed on January 19, prohibits a successor grocery employer from discharging certain grocery store employees without cause, a term left undefined by the law, during a 90-day transition period following a “change in control.” A “change in control,” in turn, is defined as “any sale, assignment, transfer, contribution or other disposition of all or substantially all of the assets of, or a controlling interest in, including by consolidation, merger or reorganization, any grocery establishment.” Continue Reading

Recent NLRB Work Rule Decision Strikes Down Another Commonly Promulgated Policy

Issuing yet another blow to commonly promulgated workplace rules, the National Labor Relations Board (“NLRB”) struck down a Whole Foods Market policy prohibiting employees from recording conversations, meetings, phone calls and other activities at work.  [Whole Foods Market, Inc., 2015 BL 424627, 363 N.L.R.B. No. 87 (Dec. 24, 2015)].  Despite Whole Foods’ explanation that the policy was specifically designed to “encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust,” and “to eliminate a chilling effect on the expression of views . . . especially when sensitive or confidential matters are being discussed,” the NLRB found that the policy could have a chilling effect on an employee’s section 7 rights.  Continue Reading

Another Day, Another Whistleblower Retaliation Suit

A False Claims Act (“FCA”) retaliation claim, 31 U.S.C. 3730(h), filed January 26, 2016 in federal district court in Oregon, provides a perfect example of the type of challenging cases confronting health care employers today.

Pediatrician Robert Dannenhoffer, MD, the former CEO of a joint venture between a hospital and physicians’ group, alleges that he was fired after he reported to the Centers for Medicare & Medicaid Services some $10 million in improper Medicare payments. He seeks reinstatement as CEO, two times his lost compensation with interest, punitive damages, and attorney’s fees and costs. Continue Reading

Do employers have the right to read employees’ private emails?

A recent European Court of Human Rights (ECHR) case (Barbulescu -v- Romania) has attracted much publicity in the UK press as giving employers the green light to read employees’ private emails. Is that correct and does this case really change things?

Background

Mr Barbulescu was employed as an engineer in charge of sales. His employer had a strict policy of not permitting private use by employees of its computer and telecommunications systems. Mr Barbulescu was asked by his employer to set up a Yahoo Messenger account so that Mr Barbulescu could communicate with customers.

Sometime later, the employer notified Mr Barbulescu that it has been monitoring his account and they believed that he had been using it for private communications. Mr Barbulescu denied this at which point his employer presented him with a 45 page transcript of all his Yahoo Messenger communications, including private communications with his fiancée and brother. Mr Barbulescu was dismissed for breaching the employer’s policy on personal use of computer systems.

Mr Barbulescu subsequently brought employment claims in the Romanian courts alleging that his dismissal was void since the employer had breached his right to privacy by accessing his private communications. Mr Barbulescu was unsuccessful before the Romanian courts but his case was brought before the ECHR. Mr Barbulescu’s argument was that Romania had failed to protect properly his Article 8 right to respect for his private and family life, his home and correspondence. Continue Reading

New Rights for Zero-Hours Workers

A quick reminder that new rules in place as of 11 January 2016 give greater protection to zero-hours workers, protecting them from dismissal and suffering from a detriment if they seek to work for another employer while engaged under a zero-hours contract.

Background

A great deal of debate took place at the time of the 2015 UK General Election regarding the status of zero-hours workers. These are individuals who are engaged under a contract with the employer, under which they are not guaranteed any hours of work. Concern was expressed during the General Election that employers were exploiting these contracts. One of the concerns was the use by employers of exclusivity clauses in zero-hours workers’ contracts which meant that, even though the employer was not required to provide workers with any work, those same workers were prevented from working for another employer. Continue Reading

New Jersey Poised to Become Latest State to Require Paid Sick Leave

On December 17, 2015, the New Jersey Senate passed legislation that would require New Jersey employers of any size to provide employees with paid sick leave. The bill was received by the Assembly on December 21, 2015, and referred to the Assembly Human Services Committee. If passed by the House and signed by the Governor, the bill would take effect 120 days after its enactment.

Leave Amount and Accrual

The bill requires small employers (10 employees or less) to provide up to forty (40) hours of paid sick leave and large employers (employers with more than 10 employees) to provide up to seventy-two (72) hours of sick leave. Employees would accrue paid sick leave at a rate of one (1) hour for every thirty (30) hours worked. In lieu of the accrual periods, employers may provide employees with a full complement of earned sick leave on the first day of each benefit year.   Continue Reading

California’s Employment Law Class of 2016: The Laws, Their Effects and Our Recommendations for Compliance

Each year, the California legislature – historically the most active of state regulators – reexamines the relationship between employers and their workforces and emerges with a multitude of employment law protections. 2015 was no exception. Lawmakers created novel and expansive measures, affecting companies throughout the state in varying degrees. Some of the laws, most of which take effect January 1, 2016, are reactions to cases decided, while others are sweeping remedies to historic and longstanding issues.

As we close out 2015, we prepare for 2016, by providing an overview of specific areas of employment law (discrimination/anti-retaliation/discharge; wage and hour; leave laws), the effect the new laws will have on employers, and some basic recommendations to help prepare for compliance. Our recommendations are limited, as the impact of these new laws are yet unknown.

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