Labor Employment Law Blog

2011 has brought numerous developments in the areas of labor and employment legislation, enforcement activity, court decisions and workplace issues for employers to consider. Please join our experienced attorneys for an informative and lively discussion on a variety of timely topics including the following.

2011 has brought numerous developments in the areas of labor and employment legislation, enforcement activity, court decisions and workplace issues for employers to consider. Please join our experienced attorneys for an informative and lively discussion on a variety of timely topics including the following.

As an UPDATE to an earlier article, please take notice that, on October 5, 2011, the National Labor Relations Board (“NLRB” or “Board”) announced that it would delay the effective date of its August 25 final rule that will require employers to post an NLRB-issued notice detailing employees’ unionization rights under the National Labor Relations Act (“NLRA”). Based on this new announcement, the effective date has been pushed back from November 14, 2011, until January 31, 2012. As a result, employers will have additional time to comply with the NLRB's unionization rights notice rule, as explained in the earlier posting and set forth again as follows for your ease of reference.

On August 25, 2011, the National Labor Relations Board (“NLRB” or “Board”) issued a final rule which, effective January 31, 2012, will require employers to post an NLRB-issued notice detailing employees’ unionization rights under the National Labor Relations Act (“NLRA”).

Join our Sheppard Mullin attorneys as they discuss recent important developments in labor and employment law at both the state and federal level. We will explain how these new developments will affect the day-to-day decisions made by business owners, in-house counsel and human resource professionals. We will also discuss the current trends in employment litigation and how employers can protect themselves from liability in the workplace.

In Tides v. The Boeing Co., No. 10-35238, 2011 WL 1651245 (9th Cir. May 3, 2011), the United States Court of Appeals for the Ninth Circuit held that the whistleblower provisions of the Sarbanes-Oxley Act of 2002 ("SOX"), 18 U.S.C. § 1514A(a)(1), do not protect employees of publicly traded companies who disclose information to the media. Instead, the Court held, SOX protects employees only if they disclose certain types of information to the three groups identified in the statute: (1) federal regulatory and law enforcement agencies, (2) Congress and (3) employee supervisors. This case sets parameters for what is and what is not protected whistleblower activity under SOX for which an employee can receive damages under the law.

On January 27, 2011, another California Court of Appeal held in Ralph’s Grocery Co. v. United Food and Commercial Workers Union Local 8 that the Moscone Act and Labor Code section 1138.1, both of which give special protections to union picketing, are unconstitutional because they violate constitutional free speech protections. This is the second Court of Appeal decision within the past year to reach this conclusion.

Join our Sheppard Mullin attorneys as they discuss recent developments in labor and employment law at both the state and federal level. We will explain how these new developments will affect the day-to-day decisions made by in-house counsel and human resource professionals. We will also discuss the current trends in employment litigation, and how employers can protect themselves from liability.

With the onset of a new year, employers must be aware of new laws scheduled to take effect in 2011. Most importantly, employers should be aware that their 2010 California and federal notices posters are now outdated, and certain employers may be required to include additional postings.

Now more than ever workers are leading double lives, only not in the way that you might expect. The old distinctions of day job and night job, or office life and home life are fading to the background as we rapidly embrace a new double life: one actual and one virtual. It is almost cliché to cite statistics detailing the staggering growth of social media, but it is nevertheless instructive. Facebook, MySpace, Twitter and LinkedIn boast a combined 885 million worldwide users, with Facebook accounting for 56 percent of that figure despite first reaching 250 million users just last year.[1] Facebook is currently the second most visited Internet site in the United States behind Google, while MySpace, Twitter and LinkedIn each place in the top 20.[2] Combine all social media and blog sites, and suddenly 22 percent of all time spent on the Internet is accounted for.[3] If use of social media has not already permeated your workplace, perhaps the next IT roll out should focus on ditching the dial-up modems.

In the recently published Bright v. 99¢ Only Stores, the California Court of Appeal held that an employee could sue her employer, 99¢ Only Stores, for failure to provide “suitable” seating during her employment. Plaintiff Eugina Bright (“Bright”) was employed as a cashier by 99¢ Only Stores. She alleged that she was not provided with a seat when she worked. Bright asserted that the failure to provide her with a seat violated the applicable Industrial Welfare Commission (“IWC”) Wage Order, which requires that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Bright further asserted that the violation of the “suitable” seating provision of the Wage Order also constituted a violation of Labor Code Section 1198, which provides: “The maximum hours of work and the standard conditions of labor fixed by the [Industrial Welfare Commission] shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” Bright sought penalties for the alleged violation of Labor Code Section 1198 under the Private Attorneys General Act of 2004 (“PAGA”), which provides a penalty for the violation of any section of the Labor Code for which a civil penalty is not otherwise provided.

Ending an investigation launched more than a year ago, on September 24, 2010, the Antitrust Division of the Department of Justice entered into an agreement with Google Inc., Apple Inc., Intel Corp., Adobe Systems Inc., Intuit Inc. and Pixar Animation settling charges that the companies' bilateral agreements prohibiting cold-calling of their employees violated Section 1 of the Sherman Act. In a complaint also filed on September 24th, the Division alleges that the companies compete for highly skilled technical employees and that their concerted behavior "reduced their ability to compete for employees and disrupted normal price-setting mechanisms that apply in the labor setting." U.S. v. Adobe Systems, Inc., Complaint, online. The Division contends the agreements are facially anticompetitive because "they eliminated a significant form of competition to attract high tech employees" and "substantially diminished competition to the detriment of high tech employees who were likely deprived of important information and access to better job opportunities."
 

Labor & Employment Law Update: 2010 Year in Review

November 10, 2010
3:45 p.m. - 6:30 p.m.
W New York
541 Lexington Avenue, New York, NY 10022

2010 has brought numerous developments in the areas of labor and employment legislation, enforcement activity, court decisions and workplace issues for employers to consider.

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 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.

Dukes v. Wal-Mart: Should I Be Doing Something to Help My Company Avoid Becoming the Next Class Action Discrimination Target?

July 13, 2010
12:00 p.m. - 1:30 p.m. - Program & Lunch
Sheppard, Mullin, Richter & Hampton LLP
650 Town Center Drive, Fourth Floor Costa Mesa, CA 92626

Please join our experienced panel for an informative and lively discussion on this timely topic. Our panel includes top economists who have been on the firing line of many of these big discrimination class actions.

Mutual fund companies have traditionally argued that they are exempt from the whistleblower protections of the Sarbanes-Oxley Act (“SOX”) because the funds themselves do not have any employees. Massachusetts District Court Judge Douglas P. Woodlock soundly rejected that argument in a ruling issued March 31 and, in so doing, may have opened the door to a tidal wave of whistleblower suits against mutual fund companies.

The Department of Justice (“DOJ” or “Department”) and the Securities and Exchange Commission (“SEC”) have dramatically stepped up their enforcement of the Foreign Corrupt Practices Act (“FCPA”). Perhaps the most noteworthy development this year was the first ever FCPA sting in which Federal Bureau of Investigations (“FBI”) agents posed as agents representing foreign government officials and solicited bribes from executives in the defense and law enforcement products industry. However, less sensational enforcement efforts—including investigations arising out of industry-wide probes and self-reporting—continue to be a focus for the DOJ and reports of more investigations surface seemingly every week. Most recently it has come to light that Australian natural resources firm, BHP Billiton, is under investigation by the SEC for possible violations of the FCPA, as well as by officials from the United Kingdom for possible corruption stemming from their operations in Cambodia and elsewhere.

On Thursday, March 18, 2010, President Obama signed into law the “Hiring Incentives to Restore Employment Act” (HR 2847) (the “HIRE Act”). The President’s signature sets the effective date for numerous HIRE Act provisions with an effective date geared to the March 18, 2010 date of enactment.

What's Happening and When in 2010

Last year brought many changes in labor and employment law. Expect more of the same in 2010. Join our experienced attorneys for an informative breakfast discussing all of the hot topics that will affect you and your employees:

On November 30, 2009, the California Supreme Court issued its ruling in the matter of Costco Wholesale Corporation v. Superior Court (Randall), S163335, upholding the protection afforded confidential attorney-client communications and affirming the sanctity of the attorney-client relationship. The decision vacated a trial court ruling which ordered that a redacted attorney opinion letter to the client be produced to opposing counsel.

The U.S. Equal Employment Opportunity Commission (“EEOC”) announced the release of a new mandatory supplement to the “EEO Is The Law” poster required to be displayed by private employers, state and local governments, educational institutions and labor organizations. The new supplement, which revises the September 2002 poster, is available to be downloaded or ordered by clicking here.

On June 29, 2009, Governor Schwarzenegger signed into law California's Electronic Discovery Act, which is effective immediately. All discovery propounded or responded to must now comply with the new law. These rules are very similar to the recent revisions to the Federal Rules of Civil Procedure, and bring California in line with the federal e-discovery standards.

In World Financial Group, Inc. v. HBW Insurance & Financial Services, Inc. the California Court of Appeal for the Second Appellate District rejected an Anti-SLAPP motion to strike in a breach of contract, theft of trade secrets, and unfair competition case. The defendants moved to strike the complaint under California's Anti-SLAPP statute, claiming that their activities in soliciting the customers and employees of their previous employer were protected speech involving a "matter of public interest," namely their pursuit of employment under the public policies expressed in California Business and Professions Code section 16600 (California's prohibition against restraint of trade). The court upheld the trial court's denial of the motion, finding that solicitation of customers in a business context was not protected activity for the purposes of the anti-SLAPP statute.

As employers struggle in the most challenging economic climate the United States has seen since the Great Depression, they face difficult cost-cutting decisions on a daily basis in an effort to survive. Most common among those decisions is whether an employer should reduce its work force to minimize costs. It seems as if not a day goes by without employers from various business sectors deciding to reduce their work force by tens, hundreds or even thousands of employees in order to avoid having to close their doors forever.

The Swine Flu virus has obviously been in the news. If your Company has not already done so, it may wish to provide the attached information to all employees.

Click here for more information.

In Sullivan v. Oracle Corp., the Ninth Circuit Court of Appeals recently ruled that the California Labor Code applies to work performed in California by non-residents of California.

As reported by Barron's Clare McKeen, the Internal Revenue Service's new "Whistleblower Office" is open and ready for business.  If you are willing to tattle on your fellow man, the IRS is willing to pay you for the information.

The Second Circuit's ruling in Westrec Marina Management v. Arrowood Indemnity Co. is a warning to employers to report potential claims to their insurance carrier as soon as possible or face denial of coverage.  In Westrec, an employee filed a charge of discrimination against Westrec with the California Department of Fair Employment and Housing (DFEH) and requested an immediate right to sue letter.  Subsequently, her attorney sent a demand letter to Westrec asserting claims and seeking possible early settlement prior to filing a lawsuit.  At the time of the letter, Westrec failed to inform its insurer, Arrowood, of the claim.  The employee later filed a civil action, and when Westrec tendered the claim, Arrowood denied coverage.

• Ask for identification of the agent-in-charge and the prosecutor. Get business cards.
• Contact your company’s inside or outside counsel. Ask the agents to talk to your counsel.
• Request the agents not begin the search until counsel can be present.
• Read the search warrant to learn what areas may be searched and what may be seized.
• You are not required to assist, but don’t interfere and don’t hide or destroy anything.
• Don’t volunteer information about your company or employees.
• Don’t consent to a search of any location or documents not identified in the warrant.
• If possible, send employees home.
• Advise employees it’s their choice whether to be interviewed by the agents.
• Employees can require that any interview occur at another time, with a lawyer present.
• Don’t talk to the media unprepared. Tell employees to keep the search confidential.
• Before the agents leave, ask for a detailed inventory of items seized.
• Inventory and photograph all areas searched as soon as the search is over.
• Identify all persons who had contact with the agents.