The First Amendment of the United States Constitution (U.S. Const. amend. I) provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This short sentence containing what is known as the Establishment Clause and the Free Exercise Clause, has been the source of a large body of law and scholarly commentary.Continue reading this entry
How Employers Faced With Potential False Claims Act Liability May Avoid Liability for Whistleblower Retaliation
Posted in Discrimination, Retaliation and HarassmentUnder the False Claims Act, a private whistleblower can bring suit on behalf of the federal government to recover funds fraudulently obtained from the government. See 31 U.S.C. § 3730. It is not uncommon for the whistleblower, who can keep up to 30 percent of the government’s total recovery, to be an employee of the defendant. Often, depending on how far along an investigation or lawsuit is, because lawsuits brought under the False Claims Act are initially filed under seal, the company may not even know the identity of the whistleblower for some time. Recently, a wide spectrum of companies — from manufacturing and construction to health care and banking have found themselves grappling with these issues, as they are confronted for the first time with False Claims Act investigations or lawsuits, in many instances instigated by their own employees.
NLRB Declares Arbitration Agreements Prohibiting Class Action Claims Unlawful
Posted in Labor Relations; New and Recent LegislationThe NLRB has decided to enter the fray in a big way as to the enforceability of arbitration agreements that do not allow for arbitration of class claims. On January 3, 2012, the NLRB ruled in D.R. Horton, Inc. and Michael Cuda, that it constitutes an unfair labor practice for an employer to require, as a condition of employment, that employees arbitrate claims as individuals rather than a class, unless a union has agreed to such arbitration provision. The NLRB found that such an agreement interferes with employees’ right to engage in protected concerted activity. This decision is a rebuke by the NLRB of two recent United States Supreme Court decisions: 14 Penn Plaza LLC v. Pyett and AT&T Mobility v. Concepcion. Continue reading this entry
Does Your New Year’s Resolution Involve Purging Records? Before You Do So, You Should Ensure Compliance With Applicable Recordkeeping Laws
Posted in Fair Labor Standards Act (FLSA)In the new year, you may be planning to purge records in an effort to create virtual or physical space and to save money on the cost of storing unnecessary records. However, before you do so, it is important to be familiar with federal and state document retention rules.Continue reading this entry
Potty Mouth Employee Loses Protection
Posted in Labor RelationsThe NLRB ruled that it was unlawful for Plaza Auto Center to fire car salesman Nick Aguirre after he swore at the company’s owner. Mr. Aguirre had only worked at the car dealership for two months, but in his short tenure, he raised a lot of complaints about his working conditions. Mr. Aguirre constantly asked his supervisors about how his commissions were calculated and when he could take bathroom and meal breaks. He griped about being employed on a 100-percent commission sales basis and said he should at least receive minimum wage.Continue reading this entry
NLRB Delays Its Notice-Posting Rule Once Again
Posted in Labor RelationsRegular readers of Foley’s Legal News: Employment Law Update will know that the NLRB has proposed a rule that would require most private sector employers in the United States to post a notice that informs their employees about their rights under the National Labor Relations Act. These rights include the right to form, join, or assist a union and the right to bargain collectively with their employers through their chosen representatives. The NLRB issued the final rule on the posting requirement on August 30, 2011. See the NLRB’s proposed poster and the NLRB’s FAQ document about the rule. Should the rule become effective, the poster is essentially the same as the one that federal contractors are already required to post under Executive Order 13496.Continue reading this entry
Careful Maintenance of Employee Medical Records May Help Avoid Needless Litigation
Posted in Americans With Disabilities Act; EEOC DevelopmentsEmployers often find themselves in possession of medical information about their employees, particularly when making determinations regarding leaves of absence, disability accommodations, or when implementing employee wellness programs. Recent developments in federal law, however, and guidance from the EEOC have taught that the manner in which this information is maintained can be a ticking litigation time bomb if not diffused correctly.
Make Sure You Increase Minimum Wage, Where Needed
Posted in New and Recent LegislationHappy New Year! Many state laws and local ordinances provided for an increase in minimum wage effective January 1, 2012. Make sure you are complying with these increases for any employees who work for you in the following states or locales:Continue reading this entry
Handling FMLA Abuse: Following Effective Processes Leads to Successful Defense of FMLA Claims
Posted in Family and Medical Leave ActEmployers continue to struggle with intermittent abuse of the Family and Medical Leave Act (FMLA). A recent federal court case, Crewl v. Port Authority of Allegheny County, highlights some telltale signs of FMLA abuse and provides good examples of what employers may want to consider when facing potential FMLA abuse situations.
NLRB Potpourri Is Not Smelling So Good for Employers
Posted in Labor RelationsIn the past few weeks, there have been a number of developments from the NLRB that will impact employers with both unionized and non-union work forces. Here is a brief summary:
- On December 22, 2011, the NLRB published a final rule in the Federal Register amending its election case procedures to reduce unnecessary litigation and delays. The rule is due to take effect on April 30, 2012, and is designed to speed up the NLRB election process and reduce the need for administrative hearings. The proposed rules are generally regarded as favoring unions who seek to organize non-union workplaces. Employers who face potential union organizing would be well advised to become familiar with the rule available online. The U.S. Chamber of Commerce immediately filed suit seeking to prevent the rule from taking effect. According to a statement issued by the Chamber, the NLRB’s final “‘ambush election rule’ imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize.”