California Court of Appeal Holds Employer Cannot Shorten Statute of Limitation on California Discrimination and Retaliation Claims

Can employers enter into binding agreements with employees to shorten the statute of limitations on discrimination and other employment claims? A California Court of Appeal decision answered that question with a resounding “no” in a recent case, reinstating claims by a woman who filed suit prior to the expiration of the applicable statute of limitations, but after the deadline she had agreed to in an employment agreement signed at the time of hire. Read More

If You Fire Me Without Cause, Can I Ignore My Non-Compete And Steal Your Clients?

In the decades since Post v. Merrill Lynch, Pierce, Fenner & Smith, 48 N.Y.2d 84 (1979), in which the New York Court of Appeals concluded it would be unreasonable to enforce a non-competition agreement requiring forfeiture of compensation against an employee terminated without cause, New York courts have struggled with articulating a clear rule as to whether an employee’s post-employment restrictive covenants are enforceable upon a termination without cause and, if so, when. Read More

EEOC Cut Short for Shortcutting Path to Court – Again

Last week, the EEOC suffered another major loss when a New York district court found that the EEOC once again shirked its pre-litigation obligations under Title VII. Read More

Tenth Circuit Issues its First Decision Interpreting SOX: Offers Broad Reading of the Act

On Tuesday, June 4th, the Tenth Circuit Court of Appeals issued its first decision interpreting the Sarbanes Oxley Act’s whistleblower protection provision, affirming a decision by the U.S. Department of Labor’s Administrative Review Board (“ARB”), which held that Lockheed Martin violated SOX by constructively discharging employee Andrea Brown after she had engaged in protected activity. The court applied Chevron deference to the ARB’s employee-friendly interpretations of SOX’s requirements. Read More

California Supreme Court Allows See’s Candy Time Rounding Decision to Stand

Earlier last month, the California Supreme Court denied petitions to review and depublish the California Court of Appeal for the Fourth District’s decision in See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889 (2012), a case of first impression on whether an employer can round an employee’s clocked time under California law. As a result, the Court of Appeal’s decision on the topic of employers’ rounding of employee time entries remains the law of the land in California.

On October 29, 2012, the California Court of Appeal confirmed that California law—like federal law—permits an employer to implement a policy rounding its employees’ recorded time so long as the policy is neutrally applied and does not systematically under-compensate employees for time worked.

The plaintiff in See’s Candy hoped to blunt this helpful precedent by asking the California Supreme Court to depublish the Court of Appeal’s ruling. However, thanks to the Supreme Court’s denial of the plaintiff’s petitions, employers and courts may continue to look to See’s Candy for guidance in the implementation of their timekeeping policies.

Supreme Court Reaffirms Enforceability of Arbitration Agreement in Noncompetition Dispute

In a succinct opinion issued on November 26, 2012, the Supreme Court delivered a stern warning to state courts that fail to enforce arbitration clauses accompanying noncompetition agreements. In Nitro-Lift Technologies, L.L.C. v. Howard, 568 U.S. ____ (2012), the employment contracts between two energy-sector employees and their employer contained a two-year noncompetition provision and a mandatory arbitration clause. After the employees joined a competitor, the employer commenced an arbitration proceeding, prompting the employees to bring suit in Oklahoma state court seeking an injunction preventing enforcement of the noncompetition agreements. Despite the mandatory arbitration clauses, Oklahoma’s highest court declared the noncompetition agreements unenforceable under a state law prohibiting restraints on an employee’s ability to work in the same industry. Read More

Federal Court Decisions Permit Two Dodd-Frank Whistleblower Cases to Proceed

 

Two federal district courts recently issued decisions adopting a broad interpretation of the anti-retaliation provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and allowed Dodd-Frank whistleblower claims to proceed past motions to dismiss. Significantly, these cases stand for the proposition that to be protected as a whistleblower under the retaliation provision of Dodd-Frank, an individual does not have to meet the definition of a whistleblower for purposes of obtaining a bounty under Dodd-Frank and in particular, does not necessarily have to make a disclosure to the Securities and Exchange Commission (the “SEC”) in the manner required in connection with the bounty provision of the statute. While the issue is far from settled as Dodd-Frank retaliation cases are just beginning to work their way through the federal courts, these decisions could contribute to further increases in the number of Dodd-Frank whistleblower retaliation claims filed against employers. Read More

U.S. Supreme Court To Decide Whether Class Action Plaintiffs Can Use Stipulations To Avoid Jurisdiction Under The Class Action Fairness Act

The United States Supreme Court recently granted certiorari to review whether class action plaintiffs can avoid federal court jurisdiction under the Class Action Fairness Act (“CAFA”) by stipulating that their damages do not exceed the federal jurisdictional prerequisite.  This issue is particularly significant to employers because they frequently rely on the CAFA to remove cases to federal court when hit with wage-and-hour and other employment class action lawsuits.  The CAFA generally permits class action defendants to remove cases with minimal diversity to federal court where the amount in controversy exceeds $5 million. Read More

The NLRB Finds That Social Media Policy Violates The National Labor Relations Act

In its first ruling on an employer’s social media policy, the National Labor Relations Board found that Costco Wholesale Corporation’s social media policy in its employee handbook violated the National Labor Relations Act.  Among the policy provisions reviewed, the Board analyzed Costco’s policy prohibiting employees from posting electronically statements that damage the company or any person’s reputation.

In its September 7, 2012 opinion, the Board stated that the “appropriate inquiry” is whether the policy would “reasonably tend to chill employees in their exercise of their Section 7 rights[,]” which provides employees with the right to engage in concerted activity.  While the Board acknowledged that Costco’s policy did not explicitly reference Section 7 activity, the Board did find that the policy’s broad prohibition on statements “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.”  The Board specifically noted that there was nothing in Costco’s policy that even suggested the exclusion of protected communications.  Accordingly, the Board concluded that Costco’s policy had a reasonable tendency to inhibit employees’ protected activity and thus violated the National Labor Relations Act.