Labor Employment Law Blog

By Brian Arbetter and Terese Connolly

Mexico’s new Federal Labor Law (FLL) took effect on December 1, 2012. The reform seeks to modernize Mexico’s labor law. The new FLL’s major, employment related amendments include increased regulation of outsourcing jobs, increased flexibility in hiring and payment of wages, the addition of the concepts of diversity, nondiscrimination and anti-harassment, and parental leave rights.

Previously, companies entering Mexico would set up two entities, one of which would be used to outsource employment to avoid paying worker benefits, including avoiding Mexico’s mandatory 10% employee profiting sharing requirement. Now, among other requirements, employers may only outsource employees if the outsourced employees perform work of a specialized character. In other words, under the new FLL, companies will need to evaluate the way they are structured or risk paying all employees (outsourced or otherwise) all employment related liabilities (such as notice requirements, severance payments, profit-sharing and social security).

By Sean Kirby

On May 8, 2013, the New York City Council, by a 45-3 vote, passed the New York City Earned Sick Time Act which will require employers with 20 or more employees to provide paid sick leave to their employees (the “Sick Leave Act”). While Mayor Bloomberg has stated his intention to veto the Sick Leave Act, the 45-3 vote was more than sufficient to overcome the two-thirds majority needed to override the Mayor’s veto. In passing the Sick Leave Act, New York City has joined Connecticut, the District of Columbia, Portland, San Francisco and Seattle as the latest municipality requiring paid sick leave for employees.

By Thomas Kaufman

On Friday afternoon, the Fourth Appellate District, Division 3 (Orange County) decided Faulkinbury v. Boyd & Associates (Faulkinbury II). This was a meal period, rest period, and overtime class certification decision in which the trial court had previously denied certification and the Court of Appeal had previously affirmed the denial (in Faulkinbury I).   However, the California Supreme Court issued a grant/hold review on the decision in light of its grant of review in Brinker Restaurant Corp. v. Superior Court (Brinker), and the case was remanded to the court of appeal to consider in light of the Brinker decision.

The new decision reverses the previous denial of class certification and mandates class certification of the meal period, rest period, and overtime claims. Although that is unfortunate for the security guard employer, the decision is actually written fairly narrowly and should not open the door to easy certification in the typical meal and rest period cases.  As explained below, while the court of appeal got the analysis half-right, it still appeared to gloss over the existence of individualized issues that should raise doubts about the ability to try the meal or rest period claims in the case as a class action.

By Jennifer Redmond, John Stigi, and Bram Hanono  

In McDaniel v. Wells Fargo Investments, LLC, Nos. 11-17017, 11-55859, 11-55943, 11-55958, 2013 WL 1405949 (9th Cir. Apr. 9, 2013), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of four class action lawsuits filed by employees against brokerage firms Wells Fargo, Bank of America, and Morgan Stanley. In separate lawsuits, the employees alleged that the brokerage firms’ policies prohibiting employees from opening outside self-directed trading accounts violatesSection 450(a) of the California Labor Code, which prohibits employers from forcing its employees to patronize his or her employer. The Ninth Circuit held that the California statute is preempted by theSection 15(g) of the Securities Exchange Act of 1934 (the “1934 Act”), 15 U.S.C. § 78o(g), which requires brokerage firms to take measures reasonably designed to prevent employees from engaging in insider trading. This case of first impression in California reassures brokerage firms that compliance with the securities laws will not violate California labor laws. 

By Gregg Fisch and Danielle Levine

On April 24, 2013, a federal jury in the Northern District of California found former Korn/Ferry International corporate executive recruiter, David Nosal, guilty on six counts of conspiracy, stealing trade secrets, and violations of the Computer Fraud and Abuse Act (“CFAA”). An appeal is expected, however.

By Brian Garrett* and Jonathan Sokolowski

On April 11, 2013, the New York City Council’s Committee on Civil Rights debated a proposed bill that would ban employers from using credit checks to evaluate prospective employees. The proposed bill, called the Stop Credit Discrimination in Employment Act (the “SCDEA” and available here), would create a blanket ban on using credit information for hiring purposes, with a narrow exception only where employers are required to use such information by state or federal law.

By Lisa Lewis and Rachel Tischler* 

On Friday, March 29th, New York State passed the 2013-14 budget. The budget includes, among other things, a significant increase to the state’s minimum wage over the next two years. Pursuant to the budget, on December 31, 2013, the minimum wage will increase from $7.25 to $8.00/hour. On December 31, 2014, the minimum wage will increase from $8.00 to $8.75/hour. On December 31, 2015, the minimum wage will increase from $8.75 to $9.00/hour.

By  Eric Raphan and Rebecca Hirschklau

On March 13, 2013, one year after we first introduced you to the idea that an individual’s unemployed status may be considered a protected characteristic, the New York City Council, voted into law legislation preventing companies from discriminating, in job advertisements or in the hiring process, against a job applicant who is unemployed. While New Jersey, Oregon and the District of Columbia have enacted similar laws, New York City has broken ground with Bill 814-A by granting unemployed applicants a private right of action, allowing them to sue alleged violators for damages in court - literally creating a new protected class of job applicants: the unemployed.

By Dawn Lurie, Mahsa Aliaskari, and Catherine Risoleo

As a testament to both the improving economy and the need for global talent, over 124,000 H-1B visa applications were filed within the first five days of the Fiscal Year (FY) 2014 quota opening, all vying for only 65,000 visas. The U.S. Citizenship and Immigration Services (USCIS) announced that it had received more than the number of H-1B petitions it takes to reach the statutory cap on April 5, 2013. USCIS also stated that the limit had been met for 20,000 H-1B visas that are reserved from the cap based on an advanced degree (Master’s cap) exemption. USCIS further announced on April 8, 2013, that a lottery drawing occurred to select the petitions that would receive the 65,000 H-1B visas available for FY 2014. The last time a lottery system was used to determine which petitioners received H 1B visa numbers was in April of 2008. Any petitions not selected by the lottery, or received after April 5th will be rejected by USCIS and the government will return the petition with all of the filing fees.

This article was originally published by the Daily Journal.

By Paul Cowie and Dorna Moini

In a recent panel discussion, one of the speakers was a so-called "ethical hacker" - a hacker-turned-protector of employers' confidential information. As someone at the forefront of cyberattacks, the ethical hacker's opinion was that there are two types of employers: those that know they have been hacked, and those that do not. And with all of the press coverage regarding recent hacks into U.S. confidential security information, it seems our ethical hacker may well be right. Indeed, in March, James Clapper, the director of National Intelligence to the U.S. Senate Intelligence Committee, suggested that cyberattacks now pose the most dangerous immediate threat to the U.S.