On Wednesday, President Obama signed into law the groundbreaking Defend Trade Secrets Act, which for the first time creates a federal civil remedy for trade secret misappropriation and provides uniformity — and hopefully predictability — to what has been a patchwork body of law applied disparately among the states.

This alert provides an overview of the new law, including provisions that require the immediate attention of all employers.

 

Yesterday, in an overwhelming 410-2 bipartisan vote, the US House of Representatives passed the Hatch-Coons Defend Trade Secrets Act (DTSA), which would for the first time federalize trade secrets law and provide uniformity (and hopefully predictability) to what has, until this point, been a patchwork area of law applied disparately among the states.  The legislation already passed unanimously in the Senate earlier this month, and President Obama has promised to sign the bill into law.

Continue Reading Trade Secrets Going Federal

Earlier this month, the NLRB struck down a couple of facially-neutral workplace civility rules in an employer’s Code of Conduct.  Ho hum, business as usual.  (We have written extensively about the Board’s crusade against what it considers overbroad work rules.  See, for example, our posts here, here and here)  What is fascinating, however, about this otherwise unremarkable decision is the spirited dissent penned by Member Philip A. Miscimarra, calling for the NLRB to overrule Board precedent which renders unlawful all employment policies, work rules and handbook provisions whenever employees could “reasonably construe” the language to prohibit the exercise of rights afforded by National Labor Relations Act Section 7, which protects “concerted” activities that employees engage in for the purpose of “mutual aid or protection.”  Rather, as detailed below, Member Miscimarra proposes a balancing test, which would take into consideration, at minimum, (i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.

Continue Reading Work Rules Hanging in the Balance? NLRB Dissenter Proposes Balancing Test Blueprint for Work Rule Challenges, a Significant Departure from Board Precedent

“Pay no attention to that man behind the curtain.  The great Oz has spoken.”  Invoking the Wizard of Oz, US Secretary of Labor Thomas E. Perez and the US Department of Labor unveiled last week the finished product of its highly-anticipated union “persuader” rule, requiring employers and their advisors to report any arrangement (e.g., third-party consultants, legal counsel, etc.) to persuade employees, directly or indirectly, concerning their right to organize.

Continue Reading Summer Blockbuster: DOL’s Divisive Union “Persuader” Rule Coming to Employers Near You on July 1, 2016

As many employers know, one of the first steps in responding to an EEOC charge filed by a current or former employee is to put together a position statement to refute the complainant’s allegations and otherwise support the employer’s position.  Though the practice varied widely across the nation, employers in many jurisdictions had an expectation that their position statements remained confidential and were not shared with complainants.  That all changed last week, as the EEOC unveiled new nationwide procedures—retroactive to January 1, 2016—providing for the release of employers’ position statements (and non-confidential attachments) to complainants and their representatives, upon request, during the investigation of a charge of discrimination.  The Nationwide Procedures and related Q&A’s can be found here.

Continue Reading A One-Way Street: EEOC Unveils Nationwide Procedures for Releasing Employers’ Position Statements

“They’re beautiful.  They’re charming.  And they’re bringing drinks.  She moves toward you like a movie star, her smile melting the ice in your bourbon and water.  His ice blue eyes set the olive in your friend’s martini spinning.  You forget your own name.  She kindly remembers it for you.  You become the most important person in the room.  And relax in the knowledge that there are no calories in eye candy.  Part fashion model, part beverage server, part charming host and hostess.  All impossibly lovely…On a scale of 1 to 10, elevens all…The memory of their warm, inviting, upbeat personalities will remain with you long after the vision has faded from your dreams.”

Do we have your attention yet?

Continue Reading NJ High Court Declines to Review “Borgata Babes” Case, Effectively Doubling Down on Appellate Court’s Acceptance of Atlantic City Casino’s Stringent Rules on Grooming, Dress and Weight Gain

In a case reminiscent of the Curb Your Enthusiasm episode where Cheryl leaves Larry, forcing their friends to choose post-split allegiances (to Larry’s dismay, Ted Danson, the Funkhousers (Super Dave Osborne and Blossom) and even restauranteur Primo, all chose Cheryl), an employer, upon hearing of co-worker spouses’ impending divorce, felt compelled to choose sides and terminated the husband’s employment while retaining the wife.

That case, Smith v. Millville Rescue Squad, in which the plaintiff husband alleges that he was a victim of unlawful marital status-based discrimination under New Jersey’s Law Against Discrimination (LAD), is currently before the New Jersey Supreme Court, which heard oral argument last week.  The facts of the case are fascinating and worth a read, but let’s focus on the salient legal issue: how to define “marital status” under the LAD.

Continue Reading Choosing Sides in a Divorce: Does it Apply to Employers Too? NJ Supreme Court Weighing Contours of “Marital Status” Discrimination

A unanimous panel of the Second Circuit recently upheld the NLRB’s well-publicized Facebook “Like” decision, which found that a sports bar violated the National Labor Relations Act when it terminated two employees for “liking” and commenting on a disparaging post from a former employee.  In an interesting twist, despite the NLRB’s insistence that the opinion be published to make it precedential, the Second Circuit—one week after issuing the decision—elected to keep the decision an unpublished summary order.

Continue Reading Second Circuit “Likes” Where NLRB Shakes Out on Social Media: Finds that Facebook “Likes” and Obscenity-Riddled Posts Were Protected by NLRA

Is passing gas now protected by our anti-discrimination laws? Over the past several years, we have written extensively (here, here, here and here) about the possibility of obesity discrimination lawsuits becoming the next wave of disability discrimination litigation, and now we have a new test case in New Jersey, and this time with a unique twist or two: a terminated employee claiming that his “extreme gas,” symptomatic of surgery related to his “disability” of obesity, led to his alleged unlawful termination, and the employee’s wife (who also happens to be his co-worker) claiming in a federal lawsuit that she was constructively discharged because of her association with her obese husband. Continue Reading Something is Rotten at the Pork Roll Company … and it’s not the Pork Rolls: Flatulent Employee (and his Wife) Bring Claims for Disability Discrimination

Earlier this month, the New Jersey Appellate Division ruled that employee arbitration agreements, to be enforceable, must contain a “clear and unmistakable” waiver of an employee’s right to a trial in court.  In Milloul v. Knight Capital Group, the court, finding no distinction between an employee arbitration agreement and a consumer arbitration agreement, extended an earlier 2014 New Jersey Supreme Court decision requiring express right-to-sue waivers in consumer arbitration agreements.

Continue Reading NJ Appellate Court Offers New Guidance on Employee Arbitration Agreements