Freedom of Watercooler Speech? NLRB Invalidates Employer’s No-Gossip Policy

Do mean-spirited watercooler talk, negative gossip, and backbiting have an effect on employee morale that companies would like prevent if they could? In many instances, probably yes. Why don’t employers create “no gossip” policies aimed at improving morale in the workplace? One company did implement such a policy and it didn’t work out so well. Read More

Germany: Bonus Cap for Bank Staff Introduced

In Germany, remuneration of managers in general has increasingly come into public and political focus.

Over the last years, the German legislator enacted several law reforms concerning managers’ pay. Very recently, the German Banking Act (Kreditwesengesetz “KWG”) was amended effective January 2014, to provide for further restrictions on bonus payments for managers and employees in the banking industry. A reform of the German Stock Corporation Act (Aktiengesetz “AktG”) however, shifting the authority of determining the remuneration of board members to the shareholders’ meeting was stopped, but presumably only for the time being. Read More

Arbitration Wars: The California Supreme Court Strikes Back In Sonic II

On October 17, 2013, the California Supreme Court revisited the enforceability of arbitration agreements in California. The Court released its decision Sonic-Calabasas Inc. v. Moreno (Sonic II). In that 5 – 2 ruling, the California Supreme Court reversed its prior decision to strike down an arbitration agreement on the ground of FAA preemption, but remanded the case for analysis of the enforceability of the arbitration agreement under an unconscionability analysis.  Read More

Orrick’s Global Employment Law & Litigation Newsletter – Fall 2013

Welcome to the Fall 2013 edition of Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals. We have designed this newsletter to provide our multinational clients with quarterly updates on important employment law issues across the globe. Read More.

You Can’t Get Paid for Sleeping on the Job

Employees who live in employer-provided housing as part of their job may not so easily claim wages for 24-hour periods of work under California’s Wage Orders, according to a recent opinion, Mendiola v. CPS Security Solutions, Inc., Case No. B245019 (July 3, 2013). Mendiola involved a class of security guards who were employed at various constructions sites across California. On weekdays, the guards were scheduled from 5:00 to 7:00 a.m. and from 3:00 to 9:00 p.m. On weekends the guards patrolled from 5:00 a.m. to 9:00 p.m. From 9:00 p.m. to 5:00 a.m. on weekends and weekdays, the guards were to remain on call at the construction site where they were provided trailer residences for their exclusive use during the on-call time. Read More

If You Can’t Say Anything Good about Someone, Well, Keep Talking – The EEOC Challenges the Legality of Non-Disparage Agreements

As the saying goes, if it didn’t end badly, it never would have ended. That is often the case for former employees who no longer simply gripe to spouses or close friends about their former employers. Disgruntled former employees and disengaged current employees often take to social media in railing on the Company for everything from a toxic work environment to lousy product to scaling back employee perks. Read More

The EEOC Aggressively Pursues Criminal Background Check Policies

On June 11, 2013, the Equal Employment Opportunity Commission (“EEOC”) filed two separate lawsuits against Dollar General and BMW Manufacturing Co. LLC, accusing each company of discriminating against Black job applicants through the improper use of criminal background screens. The aggressive positions taken by the EEOC in these cases demonstrate the agency means business with respect to cracking down on criminal background check policies that it feels are not consistent with its April 25, 2012 enforcement guidance on the use of criminal conviction and arrest records in employment decisions. The lawsuits also underscore the importance of reviewing existing policies in light of the EEOC’s emphasis on this issue.

For decades, the EEOC has taken the position that criminal background check policies pose a particular threat of adverse impact discrimination against Black and Hispanic job applicants in light of statistics showing that they are convicted at a rate disproportionally greater than their representation in the population. The agency’s first written policy guidance on the use of criminal background screens, published in 1987, explains that “the Commission has held and continues to hold that [criminal background check policies are] unlawful under Title VII in the absence of a justifying business necessity.” In April 2012, the EEOC issued new guidance on the topic (click here to read our April 30, 2012 blog entry on the EEOC’s guidance). Technically, the new guidance did not establish new rules. It undoubtedly illustrates, however, the increased scrutiny under which EEOC is reviewing criminal background check policies such as those at issue in the Dollar General and BMW lawsuits. Read More

Orrick’s Global Employment Law & Litigation Newsletter | Spring 2013

Welcome to the Spring 2013 edition of Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals. We have designed this newsletter to provide our multinational clients with quarterly updates on important employment law issues across the globe.

Prisoner 24601 May Report For Duty, Says the EEOC

Can the EEOC require employers to hire convicted criminals? Last April, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a policy guideline that calls into question the extent to which employers can incorporate a check of criminal records into a hiring decision without risking legal liability.[1]  Read More

Put up your Dukes! Supreme Court Clarifies that Damages Must be Capable of Class Wide Resolution in Rule 23(b)(3) Class Actions the United States Supreme Court’s Recent Ruling in Comcast Corp. v. Behrend

The United States Supreme Court’s recent ruling in Comcast Corp. v. Behrend, Case No. 11-864 (March 27, 2013) reinforces class certification requirements as spelled out in Wal-Mart v. Dukes. However, the closely divided court (5-4) and a strong dissent underscore that the battle over class certification standards may be far from over. While Comcast involved antitrust claims, the Court’s decision has implications for all Rule 23 cases, including employment class actions. Read More