Labor Employment Law Blog

We write to remind you of your obligation to provide your New York State based employees with a written notice and acknowledgement of pay rate and payday in compliance with the New York State Wage Theft Prevention Act, as detailed below. This written notice must be provided and acknowledged as received, by February 1, 2012.

By Gregg Fisch and Jenny Chang

On January 4, 2012, President Obama used his recess powers to appoint three members to the National Labor Relations Board (“NLRB” or “Board”). These appointments were made one day after the NLRB lost a quorum on its five-seat board following the expiration of the 2010 recess appointment of NLRB Member (and former top lawyer with the SEIU and AFL-CIO) Craig Becker. Under the Supreme Court’s 2010 decision in New Process Steel, L.P. v. NLRB, the Board must have a quorum of three members to decide cases and issue enforceable decisions. These new recess appointments restored the Board’s quorum, thereby avoiding a shutdown of the Board’s operations.

By Thomas Kaufman  (follow me on Twitter)

On December 31, 2011, as a final act for the year, the First Appellate District of the California Court of Appeal issued a good appellate decision for employers on the issue of independent contractor status, Arnold v. Mutual of Omaha. The case creates a veritable roadmap for insurance companies on how to treat agents so that they maintain their status as independent contractors rather than employees.

By Thomas Kaufman

This morning, the California Supreme Court issued the long-awaited decision in Harris v. Superior Court, addressing how to interpret the administrative exemption under California law.  The case reverses a decision of the court of appeal that effectively narrowed the exemption to employees who make company policy. At its narrowest, the Harris decision addresses the limited question of whether insurance adjusters can qualify as exempt under California's administrative exemption as it has existed at least since 2001 with the issuance of Wage Order 4-2001. Even on that limited question, the Cal Supremes declined to provide a definitive answer except to say that the court of appeal's analysis had been wrong.

By Thomas Kaufman and Jonathan Barker

On December 21, 2011, a California Court of Appeal held in Aleman v. Airtouch Cellular that employees were not entitled to additional "reporting time" pay when they came into work for scheduled meetings. Additionally, when the employees worked split shifts, they were entitled only to the difference between what they actually earned for the day, and what they would have earned had they been paid the minimum wage for the day plus an extra hour. This ruling is the first published California appellate court opinion to address these issues.

By Thomas Kaufman and Travis Anderson

In Sky Sports, Inc. v. Superior Court, (2nd Dist., Div. 3, Dec. 15, 2011) Case No. B233820, the California Court of Appeal held that a defendant does not waive its right to compel arbitration of a class action by waiting to file a motion to compel arbitration until the class has been certified, where some of the class members, but not the class representative, signed arbitration agreements with defendant.

By Thomas Kaufman and Travis Anderson

On December 13, 2011, the Ninth Circuit issued its most recent decision in the Sullivan v. Oracle saga. See Sullivan, D.C. No. CV-05-00392-AHS (9th Cir. Dec. 13, 2011). The decision followed the June 30, 2011 opinion of the California Supreme Court, in which the Court answered a question that the Ninth Circuit had posed to it: whether employees of a California-based employer who worked entirely outside California could sue the employer under the California Unfair Competition Law ("UCL") for the employer's alleged failure to pay overtime to non-California employees as required under the federal Fair Labor Standards Act ("FLSA"). See Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011). Upon remand of the case from the California Supreme Court, the Ninth Circuit held that the state court's opinion was "conclusive" and justified granting summary judgment to Oracle on the UCL claims of these non-California employees. Separately, the Ninth Circuit held that California overtime law applies to non-residents who perform work within the state, another question that it posed to the California Supreme Court to answer. This blog entry, however, focuses solely on the discussion of out-of-state employees' use of the UCL to vindicate FLSA rights.

By Travis Anderson and Gregg A. Fisch

On December 8, 2011, the Ninth Circuit Court of Appeals held that a disabled teacher who failed to meet the minimum requirements for her position was not a “qualified individual” under the Americans with Disabilities Act (“ADA”), and that her employer, therefore, was not required to accommodate her disability. This decision appears to be positive reinforcement that employers are not obligated to accommodate individuals who cannot perform the applicable job duties.
 

By Travis Anderson and Gregg A. Fisch

On December 5, 2011, in Kaiser Foundation Hospitals v. Wilson 2011 Cal. App. LEXIS 1511 (Dec. 5, 2011), the Court of Appeal for the Fourth District, Division One, ruled that the trial court properly considered “all relevant evidence,” including generally inadmissible hearsay evidence, in deciding to issue a workplace violence injunction. As a result, employers likely will have an easier time obtaining injunctions against potential workplace violence situations in the future.
 

By James R. Hays and Jonathan Sokolowski

As we have previously written on this blog, New York’s Wage Theft Prevention Act (“WTPA”) requires employers to provide annual pay notices to employees between January 1 and February 1. Accordingly, all New York employers must provide the required notices starting January 1, 2012.