Employment Matters Blog

Interfere at Your Own Risk: Legal Fees Awarded as Damages for Violating A Non-Compete Agreement

Posted in employee mobility, non solicitation, restrictive covenants

Written by Jen Rubin and Jacqulyn Lewis

We all know the default American Rule for attorneys’ fees: unless you get fees in a contract or from a statute, you shouldn’t count on someone else paying the freight if you win your case. But a recent non-compete case brings home an exception to this rule: attorneys’ fees were awarded as a component of damages to a former employer against the employer who hired away an employee subject to a restrictive covenant.

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LIRR Strike Averted, but Employers Should Remain Aware of Wage and Hour Requirements When Outside Events Prevent Workers From Reaching the Workplace

Posted in DOL, FLSA, minimum wage, Wage and Hour

By George Patterson

Recently, union leaders at the Long Island Railroad and representatives of the Metropolitan Transportation Authority finally reached a deal to avoid a strike. If a strike had occurred, businesses would have faced a potentially significant loss of employee productivity as more than 300,000 daily commuters travel to and from Long Island each day. While employers thankfully avoided the worst, it did leave them scrambling to understand their payroll obligations in preparation for the strike. We thought it prudent to quickly revisit some of the wage and hour issues that have arisen over the past few weeks so that you won’t be caught off guard during the next threatened strike, weather emergency or other event that may prevent your employees from reaching the workplace.

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The Affordable Care Act—Countdown to Compliance for Employers, Week 22: Charting the Future of the Premium Subsidies (and Employer Penalties): Halbig v. Burwell and King v. Burwell

Posted in ACA Compliance Series, Affordable Care Act, IRS, Supreme Court

Written by Stephen M. Weiner, Alden J. Bianchi, and Roy M. Albert

On July 22, 2014, two federal appellate courts issued conflicting decisions, within hours of each other, regarding the IRS final rule published on May 23, 2012 (the “IRS Rule”), intended to implement the exchange-related tax credit provisions of the Affordable Care Act (“ACA” or the “Act”). The decisions will likely lead to another Supreme Court decision addressing fundamental provisions of the ACA. How these issues are reconciled and resolved will affect the further implementation of Obamacare, and even whether its core policies will survive.

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USCIS Rolls Out Full-Scale Implementation of L-1 Site Visit Program: Employers of L-1 Transferees Should Now Set up Processes to Prepare for Such Visits

Posted in Citizenship, Department of Homeland Security, ICE, immigration

Barbara Chin, my colleague in our Immigration practice, recently wrote an advisory about the launch of an L-1 site inspection program by the U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Directorate. The program was developed in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General. The advisory provides employers of L-1 transferees with tips on how to prepare for a possible inspection and describes what to expect in the event of an L-1 site visit.

New Jersey Likely Next to Ban Discrimination Against the Unemployed

Posted in Applicant, discrimination, Employment Legislation, New Jersey

Written by David Katz

Earlier this month, we wrote about New Jersey’s proposed “ban the box” measure—a law that would prohibit employers from inquiring about job candidates’ criminal histories early in the hiring process—heading to Governor Chris Christie’s desk. It’s still sitting there, so no news on that front. However, New Jersey employers will likely soon be dealing with additional hiring process restrictions because also sitting on Governor Christie’s desk is legislation aimed at prohibiting discrimination against the unemployed.

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SHRM: FMLA Continues to Challenge Employers

Posted in FMLA

My colleague Drew Matzkin is quoted in this Society for Human Resource Management piece in which he comments on the importance of employers keeping an employee’s performance issues separate from the individual’s use of FMLA-leave. The article focuses on the rising rate of FMLA abuse and specific tactics employers can take to contain it.

The Affordable Care Act—Countdown to Compliance for Employers, Week 23: The Impact of Employment Contract Terms on Variable Hour Employee Status

Posted in ACA Compliance Series, Affordable Care Act, IRS

Written by Alden J. Bianchi

For applicable large employers (i.e., employers who employed at least 50 full-time and full-time equivalent employees on business days during the preceding calendar year) endeavoring to comply with the Affordable Care Act’s employer shared responsibility rules, determining an employee’s status as “full-time” is critically important. Final regulations implementing the Act’s employer shared responsibility requirements establish two methods—(1) the monthly measurement method and (2) the look-back measurement method—for making that call. The latter, the look-back measurement method, further classifies newly-hired employees as full-time, variable hour, seasonal or part-time. Of these, what constitutes a “new variable hour employee” has proved to be far and away the most confusing.

A recently published set of Questions & Answers made available by the American Bar Association’s Section of Taxation, Employee Benefits Committee, provides some helpful insights into the IRS’s view of which employees may be properly classified as “variable hour.” The Q&As are based on a presentation made by IRS and Treasury officials at the Tax Section’s Employee Benefits Committee May 2014 meeting in Washington, D.C. The Q&As reflect the unofficial, individual views of the government participants, which do not necessarily represent formal agency policy. Thus, they may not be relied on as precedent. They are, nevertheless, useful in gaining an understanding of how the regulators think the rules ought to work. One particular Q&A (Q&A 25), entitled “Determining Whether a New Employee is a Variable Hour Employee,” deals with the effect of the terms of an employment contract on variable hour status. The IRS response also elucidates other important aspects of the rules governing variable hour employees.

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Having Employees Sign Non-Compete Agreements After They Have Already Started Working Could Be A Big Problem For Some Employers

Posted in employee mobility, non solicitation, Non-compete, restrictive covenants

Written by Brandon Willenberg

A non-compete agreement is a vital tool that companies use to protect their confidential and trade secret information and their customer and employee relationships. Employers, of course, want to avoid the trouble of running to court to enforce their non-compete agreements, but if they do, they better make sure their non-competes will withstand a judge’s scrutiny. Otherwise, they’ll end learning the hard way, like WorkflowOne did this week courtesy of the federal district court in Hawaii.

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California Supreme Court Nixes Certification Denial Ruling Against Newspaper Carriers Classified as Independent Contractors

Posted in California, class action, independent contractor, misclassification, Wage and Hour

By George Patterson

The California Supreme Court recently held that a trial court needed to revisit its class certification decision regarding newspaper carriers who alleged that they should have been classified as employees rather than independent contractors.  The trial court erred, the Court said, by focusing not on differences in the newspaper’s right to control the individual plaintiffs’ work, but on variations in how it exercised that right.

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Back to the Basics: Non-Compete Lost to a Superseding-Agreement Clause

Posted in employee mobility, Non-compete, restrictive covenants

Written by Jennifer Rubin and Erin Horton

With so much focus on the reasonableness of restrictive covenants, it’s easy to forget that non-competes are plain old contracts—nothing more. And when it comes to enforcing non-competes, basic contract law still applies.

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