Labor Employment Law Blog

Primarily as a result of the recent dramatic increase in the U.S. government's enforcement effort, the Foreign Corrupt Practices Act (FCPA) has received a great deal of attention of late. The financial reform legislation signed by President Obama on July 21, 2010 adds an incentive that will likely further increase the dangers posed to companies and individuals by the FCPA. The law contains a provision that will reward whistleblowers who voluntarily provide information leading to the successful enforcement of U.S. securities laws, including the FCPA, with between 10% and 30% of any recovery over $1,000,000. The whistleblower must provide "original" information, not already known to the SEC and not merely derived from existing investigations, audits, or reports. The SEC will have discretion to set the amount within the 10% - 30% range, based on the significance of the information to the success of the action, the whistleblower's degree of assistance, and the interest of the SEC in using whistleblower payments to deter problematic conduct in the future. The provision also extends the reward to "related actions" taken by other prosecuting agencies based on the reported information, and thus will apply to actions initiated by the DOJ and other federal, state, and foreign law enforcement agencies.

Our New, Improved, and FREE Breakfast With Your Labor Lawyer (in the Evening!)

2010 has brought numerous developments in labor and employment involving legislation, enforcement activity, and court decisions. Please join our experienced attorneys for an informative and lively discussion regarding recent activity & developments in labor & employment law.

If you or a colleague missed it the first time, fear not... we are reprising our Sexual Harassment Training for clients who missed our in-person seminar on this topic.

WHEN: August 18, 2010, 12:00 p.m. - 2:00 p.m.
SPEAKERS: Ronda Jamgotchian and Jason Kearnaghan, Sheppard Mullin 
WHERE: From any computer anywhere via WebEx.

In two opinions published on July 7, 2010, the Second and Fourth Districts of the California Court of Appeal refused to allow two objectors to derail two different class action settlements. In these two wage and hour class actions, the objectors challenged the proposed settlements on fairness grounds, and the courts once again affirmed the deferential review standard while rejecting the objectors arguments.

A recent case has provided important guidance as to whether employers may restrict the types of speech that take place on their property. In Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, a California Court of Appeal addressed the issue of picketing outside of a storefront.

In Narayan v. EGL, Inc., the employer, EGL, Inc. (“EGL”), is a global transportation company that provides “air and ocean freight forwarding, customs brokerage, [and] local pickup and delivery service.” EGL is incorporated and headquartered in Texas, but it operates through a network of over 400 facilities in 100 countries. The case was brought by three drivers who were engaged to provide freight pick-up and delivery services for EGL in California. All three drivers had entered into “Leased Equipment and Independent Contractor Services Agreements” (the “Agreements”) with EGL that were employer-drafted pre-printed form contracts. The Agreements contained acknowledgments by the drivers that they were independent contractors and choice-of-law clauses providing that the Agreements shall be interpreted in accordance with Texas law.

In Solis v. Tennessee Commerce Bancorp, Inc., a three-judge panel of the Sixth Circuit recently reversed a lower court’s decision to enforce a preliminary order by the Department of Labor (“DOL” or “Department”) to reinstate an alleged whistleblower under the Sarbanes-Oxley Act of 2002 (“SOX”). The court avoided determining whether it had authority under SOX to enforce preliminary orders, instead deciding the case based on the “balance of harms” test that applies in all cases seeking preliminary injunctive relief.

On June 22, 2010, the U.S. Department of Labor issued a clarification of definitions under Section 101(12) of the Family and Medical Leave Act (FMLA) designed to ensure all employees who care for children are eligible for parental rights to leave under the Act—even when the employee lacks a legal or biological relationship to the child. The change requires employers to provide FMLA leave to employees caring for children who were previously uncovered by the Act, particularly gay and lesbian parents and "non-traditional" parents who care for children but are not those children's legal stepparents or guardians. The change is a clarification from the Department about its new interpretation of the FMLA, rather than a statutory or regulatory change to the law. Nevertheless, all employers should take note of the Department's new guidelines with an eye towards compliance.

On June 17, 2010, the United States Supreme Court issued its opinion in the case of New Process Steel v. National Labor Relations Board. At the time the National Labor Relations Board ("NLRB") decided this case, the Board had only two members. The Board had historically been compromised of five members. However, near the end of 2007, there were four members, and they delegated their powers to three members. Then, on December 31, 2007, one of the Board member's term expired, obviously leaving only two members. Over the next 27 months, those two remaining Board members issued more than 500 decisions.

On June 17, 2010, the United States Supreme Court issued its opinion in the case of Quon v. Arch Wireless Operating and The Ontario Police Department. The Supreme Court had to decide whether the City of Ontario had violated the privacy rights of Quon and the officers he texted when, as part of an overage audit, Ontario Police Department Management read transcripts of messages Quon sent on his City-issued pager.