Employment Matters Blog

Will the Second Circuit “Like” the NLRB’s Recent Stance on Social Media? An Update on the Facebook “Like” Firing Case

Posted in New York, NLRB, Second Circuit, Traditional Labor

The NLRB last week filed its brief at the Second Circuit Court of Appeals in the well-publicized Facebook “Like” firing case, Three D, LLC v. NLRB.  Prior to the appeal, we discussed the NLRB’s August 2014 ruling here as part of a broader discussion of the Board’s recent crackdown on employers’ “overbroad” social media policies.  The Second Circuit’s forthcoming decision will be one of the first appellate court decisions to weigh in on the NLRB’s expansive view on employee rights under the National Labor Relations Act in the social media context.

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Second Circuit Synchs Up With its Sister Courts: Now Says Employees May Premise FLSA Retaliation Claim on Oral Complaints to Employer

Posted in employer liability, FLSA, New York, Second Circuit, Wage and Hour

This week, in Greathouse v. JHS Security, Inc., the Second Circuit Court of Appeals held that employees may pursue a Fair Labor Standards Act retaliation claim premised upon an oral complaint to their employer – a clear expansion of its earlier interpretation of the law.

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California Non-Compete Update: No Re-Hire Provisions May be in Jeopardy, Especially for Large Employers

Posted in California, Employee Mobility, Non-compete, restrictive covenants

The Ninth Circuit Court of Appeals recently sent a case back to a district court to revisit its enforcement of a settlement agreement that prohibited an employee from future employment with the employer and any company the employer later acquired or served.  The opinion in Golden v. California Emergency Physicians Medical Group addresses whether California Business & Professions Code section 16600 extends to non-compete agreements only and certainly provides ammunition for future attacks on no re-hire provisions in settlement agreements and other non-traditional restrictive covenants.

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The EEOC Provides Welcome Guidance on Employment-Based Wellness Plans

Posted in ADA, Affordable Care Act, DOL, EEOC, GINA

On April 16, 2015, the EEOC published proposed regulations setting forth its position on the use of physical examinations under employment-based wellness programs.  This comes as welcome guidance to employers who have implemented, or who hope to implement, workplace wellness programs that include biometric tests or physical examinations as part of the process for providing financial rewards to employees.

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California District Court Holds That LinkedIn’s “Reference Searches” Function Not a Consumer Report under the Fair Credit Reporting Act

Posted in Applicant, background checks, California

A Magistrate Judge in the Northern District of California recently handed down an important decision regarding the application of the Fair Credit Reporting Act to one of LinkedIn’s search products.  The decision in Sweet v. LinkedIn Corp. comes amidst a fluid legal landscape for employers and consumer reporting agencies trying to remain in compliance with the FCRA and provides another example of a court grappling with how to reconcile new technologies with existing statutes.

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New York City Will Prohibit Most Employers From Basing Employment Decisions on an Applicant or Employee’s Consumer Credit History

Posted in Applicant, background checks, discrimination, employer liability, Employment Legislation, Hiring, New York, Trade Secrets

The New York City Council passed the Stop Credit Discrimination in Employment Act last Thursday.  It amends the New York City Human Rights Law to prohibit most employers from making employment decisions based on an employee or applicant’s consumer credit history. The law will go into effect in the late summer. We discuss the law and its implications below.

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En Banc Sixth Circuit Decision Holds that Telecommuting Was Not a Reasonable Accommodation Under the Americans with Disabilities Act for Ford Employee

Posted in ADA, Disability discrimination, EEOC, Reasonable accommodation, summary judgment

Last Friday, the Sixth Circuit Court of Appeals sitting en banc held that telecommuting up to four days a week was not a reasonable accommodation under the ADA for a disabled Ford Motor Co. employee.  The decision, EEOC v. Ford Motor Co., provided a win for employers (and a setback for the EEOC) by reversing an earlier decision issued by a divided panel of three Sixth Circuit judges, which had held that telecommuting was a reasonable accommodation for this particular employee.

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NLRB Holds Employee’s Obscene Facebook Post Criticizing Supervisor is Protected

Posted in NLRB, Traditional Labor, union organizing

We have written previously about the expanding scope of social media activities that the National Labor Relations Act protects and the tight limits the NLRB places on an employer’s ability to discipline employees for work-related communications that take place online. As the Board’s latest ruling makes clear, employee social media communications that relate to working conditions or unionization will often be protected even if they are offensive, obscene or attack individual members of management personally. In Pier Sixty, LLC, 362 NLRB 59 (March 31, 2015), the NLRB upheld an administrative law judge’s decision that a catering company in New York City violated sections 8(a)(1) and (3) of the NLRA when it terminated an employee for profanely attacking and insulting a supervisor in a Facebook post two days before a union certification election.

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New York Federal Court Applies New York City Human Rights Law’s Liability Provision to Employer’s Agent

Posted in discrimination, employer liability, Litigation, New York, sexual harassment

The New York City Human Rights Law specifically says that an employer’s agent can be held liable for discrimination, but its liability provision doesn’t address the circumstances under which that agent may be held liable for the discriminatory actions of the agent’s employee.  A New York Federal Court has now addressed this gap in the law.

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