Employer Law Report

Archives: Traps for the Unwary

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The word “or” might render your non-compete worthless

The Northern District of Ohio recently refused to grant a Temporary Restraining Order (TRO) or Preliminary Injunction against an employee for allegedly violating a non-compete because the court said the agreement was written in the disjunctive. Alloy Bellows & Precision Welding Inc., v. Cole, Case no. 1:15CV494 (N.D. Ohio, April 22, 2016).

The claim was brought by Ohio corporation Alloy Bellows that manufactures “bellows assemblies,” which are highly specialized components of machines used in aerospace, heavy equipment, medical, nuclear, petrochemical, power generation (gas turbine) and semiconductors. Its former business development manager, Defendant Jason Cole, took a job with one …

8th Circuit upholds unfair labor practice findings in Jimmy John’s “Sick Sandwich” case

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers hung posters at their shops and then later elsewhere suggesting that customers would not be able to visually tell the difference between sandwiches made by …

Director of human resources may be personally liable for FMLA violations

What an interesting and challenging time to be a human resources professional. There are the day-to-day challenges such as dealing with management needs, trying to support employee morale, keeping an eye on policy enforcement, legal compliance and workplace investigations. The list goes on. The U.S. Court of Appeals for the 2nd Circuit recently added one more challenge. The Court held that a human resources professional can be held personally liable for her company’s FMLA violations.

The Culinary Institute of America questioned the validity of an employee’s medical support for FMLA time off. In the ensuing communication between company and employee, …

Silence equals acquiesence, equals promissory estoppel claim

In Jennifer Trehar v. Brightway Center, Inc., the Seventh District Court of Appeals held that a promissory estoppel claim can lie even without an explicit promise—silence where an ordinary person would make a statement or take action.

Facts

Jennifer Trehar was employed at Brightway Center, a Christian non-profit, since 2010. In June 2012, she claimed she informed Brightway on two different occasions that she planned to move in with her boyfriend. She claimed that, on the first occasion, she was congratulated by her boss on the move. On the second occasion, she was granted permission to miss a work …

OSHA fines to increase almost 80%

For the first time since 1990, the Occupational Safety and Health Administration (OSHA) will increase its fines to reflect inflation. For willful and repeat citations, this will mean an increase in the maximum possible penalty from $70,000 to around $125,000. For serious citations, it will mean an increase in the maximum possible penalty from $7,000 to around $12,600. The Bipartisan Budget Act of 2015, signed into law by President Obama on November 2, allows OSHA a one time “initial adjustment” for inflation and then allows OSHA to adjust for inflation annually after that.

OSHA penalties are calculated from a number …

Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes.”

Following a decision last week by the National Labor Relations Board (NLRB), it is likely that all companies that use temporary staff workers will be considered a “joint employer” with the temporary staffing agency if efforts are made by a union to organize the temporary workers.

The use of temporary staff is a significant part of the business plan for many companies. Although it was in the past a strategy used primarily by manufacturing companies, temporary staffing is now common across many industries, including warehousing, logistics and service. The potential advantages to using temporary staff include off-loading human resource responsibilities, …

Second Circuit rejects DOL test for unpaid internships

The Second Circuit Court of Appeals in Glatt et al. v. Fox Searchlight Pictures, Inc. recently rejected the Department of Labor (“DOL”) six factor test for determining whether an individual has been properly classified as an unpaid intern in favor of another test that looks at whether the intern or the employer is the primary beneficiary of the relationship.

The DOL’s six factors are:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;

Transgender status may not be a protected class, but lawsuits involving transgender employees are permitted to proceed

Caitlyn Jenner has dominated the national public interest stories and social media of late. However sensational the news has made this particular story, the issues surrounding transgender individuals are increasingly impacting employers.

Recently, the Eastern District of Michigan permitted one of the first sex-discrimination cases over a transgender employee’s firing to proceed. The Court refused to dismiss the case despite the fact that transgender persons are not a protected class under Title VII, finding instead that transgender employees are like other employees who are permitted to sue their employers over sex stereotypes. The Eastern District of Michigan is part of …

NLRB files complaint against postal service for not bargaining with union over effects of data breach incident

We all pretty much know the drill at this point. Organization announces data breach, sends out notices as required under state and/or federal law to those individuals that are affected, offers some kind of identity theft protection or credit monitoring service, awaits public criticism and backlash. The NLRB and the American Postal Workers Union (“AWPU”) apparently think that there should be an additional step when the data breach involves the personal information of employees who are covered by a collective bargaining agreement – bargaining over the effects of the data breach on, and the remedy to be provided to, the …

Reminder to federal contractors and subcontractors: April 8th effective date for expanded discrimination protections

In December, 2014, Jamie LaPlante wrote here about expanded obligations under the affirmative action laws that cover federal contractors and subcontractors. Among the changes she mentioned was the April 8th effective date for the inclusion of sexual orientation and gender identity among the classes protected under affirmative action laws. The expanded protections apply to all federal contractors and subcontractors who enter into new contracts or modify existing contracts on or after April 8th.

Under the expanded protections, discrimination against applicants or employees based on sexual orientation or gender identity is prohibited. Sexual orientation and gender identity now …

The U.S. Securities and Exchange Commission brings its first whistleblower enforcement action based upon an allegedly overbroad employee confidentiality agreement

The U.S. Securities and Exchange Commission (SEC) has now brought its first whistleblower enforcement action against a publicly traded company under the Dodd-Frank Act of 2010 for utilizing an overly broad employee confidentiality agreement. Specifically, the SEC alleges that KBR, Inc., has violated the Act by implementing employee confidentiality agreements that “potentially discouraged” employees from becoming whistleblowers by reporting misconduct to the SEC. This is illegal under the Act, and specifically under SEC Rule 21F-17 which prohibits employers “from taking measures through confidentiality, employment, severance or other type of agreements that may silence potential whistleblowers before they can reach out …

NLRB: employer unlawfully fired employee for calling supervisor a “NASTY M____ F____ER”

On Tuesday, March 31, 2015, the NLRB issued an order upholding an ALJ decision that Pier Sixty LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it terminated an employee who wrote on his Facebook page that his supervisor was a “NASTY M____ F____ER.”

According to the Board’s majority opinion, a number of service employees at Pier Sixty had expressed interest in union representation, in part because of concerns that management repeatedly treated them disrespectfully and in an undignified manner. Two days before the union election, a 13-year employee, who was working as a server at …

The dawn of .sucks — protecting your brand

Although companies’ marketing departments likely are all over this issue, it won’t hurt their human resources directors to ponder what might happen if a few of their disgruntled former employees gets their hands on this new top level domain name.

Our colleagues at Porter Wright’s Technology Law Source blog have watched the launch of hundreds of new generic top-level domains (gTLDs) through the past several months. Introduced to increase competition in the domain name market and enhance the Internet’s stability and security, these new gTLDs are projected to change the face of the Internet and how we use it. Today, …

They’re BAAACK: Five things to consider before rehiring boomerang employees

Nathaniel S. Butler/NBAE/Getty Images & Mark Duncan/AP Images

As the NBA Season gets ready to tip off, Cleveland is certainly ready. The return of LeBron James to the Cleveland Cavaliers has riveted the sports world and reinvigorated Cleveland. But for employers, this “going home” phenomenon has prompted conversations of boomerang employees — those employees who leave an employer only to return sometime later. This article looks at this relatively-new concept, and outlines what employers should consider before re-hiring a boomerang employee.

When the question used to come up of whether to re-hire a former employee, many employers aligned with one …

The latest surge in data breaches highlight key takeaways for employers

The recent data breaches at Target, Home Depot, and Jimmy John’s have kept data privacy and security in the news lately. But from a legal perspective, there has never been much that the victims of these breaches could do to obtain a remedy in the absence of actual proof of identity or other theft. Indeed, ever since the U.S. Supreme Court decision in Clapper v. Amnesty International, it has been clear that the mere potential for future injury is insufficient to confer standing on a data breach victim to sue. Instead, the plaintiff must prove that injury is “certainly …

Circuit Courts remind employers that notice is the key in administering the FMLA!

Both the Third and Sixth Circuit Courts of Appeal issued decisions last month reminding employers that providing proper notices to employees is a key to administering the FMLA. In Wallace v. FedEx Corporation, the Sixth Circuit upheld the district court’s ruling that the employer interfered with its employee’s FMLA rights when it failed to notify her of the consequences of not turning in an FMLA leave certification. Similarly, in Lupyan v. Corinthian Colleges, Inc., the Third Circuit reversed a summary judgment finding in favor of the employer because there was a factual dispute regarding whether the employer …

NLRB reinstates food industry employees following work-related complaints

Employees today are certainly more media and marketing savvy than they were even 10 years ago, and they have more tools through which they can reach the public and each other to let their voices be heard. Two recent NLRB cases demonstrate that if employers are too aggressive in attempting to combat these employee communications, they can end up on the wrong end of an unfair labor practice finding.

In Triple Play Sports Bar & Grille, the National Labor Relation Board held that two employees had engaged in protected concerted activity under the National Labor Relations Act (“Act”) when …

The Obamacare see-saw — an opposing decision on subsidies

Some days are just more fun that others!

Just hours after the D.C. Circuit Court of Appeals issued its opinion in Halbig v. Burwell, which held that tax subsidies made available under the Affordable Care Act (“ACA”) to lower income individuals to help defray the cost of health care coverage may not be extended to individuals who reside in states that have elected not to establish their own health care exchanges, the 4th Circuit Court of Appeals today issued a unanimous decision today in King v. Burwell that upholds entitlement to tax subsidies available under the ACA for all …

Obamacare takes an unexpected hit!

A federal Court of Appeals panel in Washington, D.C. today released a decision that, if upheld, would strike down one of the main pillars of the Affordable Care Act (“ACA”) and in the minds of many observers lead to unpredictable consequences. In a 2-1 decision in Halbig v. Burwell, the three-judge federal appeals panel reversed a decision by a lower District Court judge and held that tax subsidies made available under the ACA (often referred to as Obamacare, with or without derision) to lower income individuals–generally individuals making less than $46,075 annually–to help defray the cost of health care …

Keeping up with the dot-anythings

For the past several weeks, our colleagues at Technology Law Source have been working hard to keep readers apprised of developments related to The Internet Corporation for Assigned Names and Numbers’ new generic top-level domain (gTLD) program. This program, which is essentially redefining the face of the Internet, is likely to impact any business — or, indeed, any entity — with a web presence. If you haven’t been able to keep up with the hundreds of gTLDs already delegated this year, download this hot-off-the-press e-book: Protecting Your Brand in a New gTLD World.

You also may want to subscribe …

OSHA retaliation claims could get new “teeth”

Section 11(c) of the Occupational Safety and Health Act prohibits retaliation against employees who raise safety concerns at work or participate in OSHA enforcement activity. In recent Congressional hearings, Assistant Secretary of Labor, David Michael, proposed substantive and procedural changes for OSHA retaliation claims. If adopted, the changes could pose significant problems for companies defending against these claims.

The most concerning of the changes proposed by Mr. Michael would allow for immediate “preliminary reinstatement” of a terminated employee claiming retaliation. Depending on what standards would ultimately be imposed for obtaining this sort of preliminary relief, employers could be required to …

Are You Ready, Baby? March Madness = Workplace Madness

The NCAA men’s basketball tournament, a/k/a March Madness, kicks off Sunday, March 15 with Selection Sunday, then rolls on Tuesday, March 18 with a couple of play-in games and then on to the actual tournament, which begins Thursday, March 20. The brackets, the gambling, the office conference rooms dedicated to the games, the continual online streaming of games, the excitement…it’s all here! And with Warren Buffet recently announcing he will give $1 billion to anyone who can pick a perfect bracket, the stakes just got higher! While the Billion-Dollar Bracket may be new this year, March Madness, Super Bowl …

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