Labor & Employment Law Perspectives

Timely insight on emerging legal and business development

Who Owns Your Company’s Twitter Followers?

Posted by Tamar N. Dolcourt on Posted in Human Resources/ Employer Matters

 More and more companies are turning to social media for marketing, and in some cases are creating accounts on Twitter.com, a social networking service which allows a use to send updates or “tweets” of 140 characters or less to its “followers,” people who have subscribed to that user’s content (even Foley & Lardner LLP has its own Twitter presence, which can be found at: http://twitter.com/#!/FoleyandLardner.  As corporate use of social media tools grows, so do the inevitable issues with managing employees’ use of these tools.  A case going forward in California right now illustrates a potential problem with the corporate use of Twitter:  what happens when the employee who created and managed a Twitter account on behalf of the company leaves and takes the Twitter account and its followers with him?Continue reading this entry

To Arbitrate or Not to Arbitrate? – That Is the Question

Posted by John H. Douglas on Posted in Human Resources/ Employer Matters

Many employers welcomed the Supreme Court’s April, 2011 AT & T Mobility v. Concepcion decision with both open arms and a sense of relief – fatigued as they have been with employment-related class actions – and looking forward to a new day of arbitrating statutory claims on an individual (rather than class) basis.  That sense of relief is proving short-lived.Continue reading this entry

EEOC Issues Updated Guidance on Consideration of Arrest and Conviction Records

Posted by Carmen N. Couden on Posted in EEOC Developments

On April 25, 2012, the EEOC published updated enforcement guidance on the use of arrest and conviction records when making employment decisions. Although the EEOC’s guidance does not prohibit employers from considering criminal records as part of the decision-making process, it does set forth the EEOC’s recommended best practices for employers to follow when creating a background screening process that includes a criminal records check. In addition, the EEOC’s guidance emphasizes that an employer’s criminal record screening process should be “job related and consistent with business necessity” and states that employers should conduct an individualized assessment of each applicant or employee’s circumstances before disqualifying the individual for employment based on past criminal conduct.Continue reading this entry

Employers Beware: Health-Related Absences of Less Than Three Days May Be FMLA-Protected

Posted by Richard Albert on Posted in Family and Medical Leave Act

An employer should not presume that an absence from work of less than three consecutive days for a health-related reason is not protected by the FMLA, and it should carefully scrutinize an employee’s absence from work for health-related reasons before disciplining or discharging the employee for excessive absenteeism or tardiness. In Fries v. TRI Mktg. Corp., D. Minn., No. 11-01052, 4/23/12, a court ruled that the cumulative effect of multiple health conditions that afflicted an employee and caused a single-day absence for which her employment was terminated can be considered by a jury to determine whether she had a “serious health condition” that entitled her to FMLA leave even though each condition alone may not qualify as a “serious health condition” under the FMLA.Continue reading this entry

Five Quick Tips on Handling eDiscovery in Employment Litigation

Posted by Foley & Lardner on Posted in E-Discovery

Written by: Adam C. Losey and Scott Callen

Employment litigation can be expensive and time-consuming, especially due to the increased importance of and focus on ediscovery (the grab-bag of legal and logistical issues associated with the management, identification, preservation, collection, search, review, and production of electronically stored information). Below are five quick tips for efficiently and effectively handling ediscovery in employment cases:Continue reading this entry

Pregnant Employees Make Very Sympathetic Plaintiffs

Posted by Dabney E. Ware on Posted in Discrimination, Retaliation and Harassment

Some of the toughest discrimination claims involve pregnancy. A recent Florida case, Williams v. Crown Liquors, in which the court made the company go to a jury trial, helps to illustrate some of the potential pitfalls. The employee was the human resources director for the company and had been employed almost five years when she learned she was pregnant. About four months into the pregnancy, the employee shared the information with friends, family, and the company. Soon afterward, her doctor suggested she consider working from home due to concerns about high blood pressure and issues with her ability to commute more than an hour one way to work.Continue reading this entry

OSHA Injury Log Requirement — Will OSHA Clarify?

Posted by Robert A. Bressler on Posted in Labor Relations

As a regulation under the Occupational Safety and Health Act, the U.S. Department of Labor (DOL) requires that employers keep a log of deaths, injuries, and illnesses. However, the regulation only requires employers to log deaths, injuries, and illnesses that are “work-related.” The regulation defines work-related as those instances when the workplace “contributed to” the resulting condition. This vague definition has not provided employers with sufficient guidance about when they should or should not log injuries, and often creates frustrating situations in which employers must make a judgment call about whether to log such injuries. For many employers, this judgment call comes at great expense because it requires consultation with experts and the formation of special committees to provide recommendations on whether injuries are work-related.Continue reading this entry

States and Feds Moving to Block Employer Access to Social Media

Posted by John F. Birmingham Jr. on Posted in Human Resources/ Employer Matters

Employers are increasing the review of applicants’ social media sites as part of their standard hiring processes. A 2009 poll revealed that as many as 45 percent of employers regularly screen applicants through social media sites such as Facebook and Twitter, and many of these employers have declined to hire candidates because the sites contained provocative or inappropriate photographs, drinking or drug use, negative comments about prior employers, discriminatory comments, and so forth. While laws like the Electronic Communications Privacy Act require permission to access sites and government organizations such as the NLRB have policed discipline based upon social media activity, no state has banned the review of applicants’ social media sites until now.Continue reading this entry

Brinker Confirms Practical Approach to Meal Breaks

Posted by Jeremy J. Bledsoe on Posted in Wage and Hour

The long-awaited decision in Brinker Restaurant v. Superior Court (Honhbaum) makes clear that employers do not need to force employees to take their meal breaks. Instead, an employer satisfies its duty under California’s meal period and rest break laws by relieving its employees of all duties, relinquishing control over their activities and permitting them a reasonable opportunity to take an uninterrupted 30-minute break, and not impeding or discouraging them from doing so. The Court made clear that “the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations.”Continue reading this entry