Category Archives: Employment Law

Employment Law

Party Foul! NLRB Orders Reinstatement and Back Pay for Party Bus Guide After Finding Facebook Postings Amount to Protected Union Organizing Activity

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Providing yet another example of how online social networking can amount to protected conduct under the National Labor Relations Act, the NLRB ruled earlier this month in New York Party Shuttle, LLC and Fred Pflantzer, CN: 02-CA-073340 that a New York City tour guide’s Facebook postings constituted protected union organizing activities. The board held that New York Party Shuttle LLC unlawfully discharged Fred Pflantzer when it refused to give him new assignments after he posted Facebook messages criticizing the company’s employment practices. Read More

Employment Law

Three More States Hop on the Social Media Legislation Bandwagon

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So far in 2013, three states (Arkansas, New Mexico and Utah) have passed new social media legislation restricting employer access to employees and job applicants’ personal social media accounts. We previously posted about social media legislation in California and other states here and here.  Read More

Employment Law

Duty to Disclose for Employers Claiming “Competitive Disadvantage” in Labor Negotiations

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In a divided opinion published on December 4th, the U.S. Court of Appeals for the D.C. Circuit provided a reminder that employers should always be prepared to substantiate representations made during labor negotiations and clarified the scope of disclosure obligations for employers relying on competitive pressures as a basis for seeking concessions. In KLB Industries, Inc. v. National Labor Relations Board, No. 11-1280 (D.C. Cir. 2012), the employer justified proposed wage concessions by citing, among other things, heightened competition from foreign manufacturers. Union representatives requested an array of information to test the employer’s claim, but the employer largely refused.

The Court of Appeals agreed with the National Labor Relations Board that the employer’s refusal constituted an unfair labor practice under the National Labor Relations Act, which requires employers to furnish relevant information that unions need to perform their role as bargaining representatives. The court found that once an employer makes specific claims of “competitive disadvantage” in labor negotiations, bargaining representatives are entitled to request specific information tailored to verify those claims.  In so doing, the court rejected the suggestion—made by the employer and endorsed by the dissent—that “competitive disadvantage” claims are exempt from these liberal disclosure obligations.

Have questions? With Orrick’s expertise in traditional labor law, we can help you in navigating union-management relationships and in responding to unfair labor practice charges.

Employment Law

After the Storm: Employers’ Obligations After Sandy

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Hurricane Sandy and its aftermath has created enormous difficulties for employers on the East Coast. Between the devastation caused by the storm itself, power outages, and transportation shutdowns, employers were forced to close business or operate on a significantly reduced basis for days, and, in some cases, weeks. Nevertheless, companies must still satisfy certain obligations as employers. While situations vary considerably from employer to employer, here is a summary of key issues and employer obligations post Sandy: Read More

Employment Law

Orrick Submits Amicus Brief on Behalf of SIFMA Urging Fifth Circuit to Reject Two-Step FLSA Certification Procedure

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Orrick, on behalf of its client, the Securities Industry and Financial Markets Association (“SIFMA”), recently filed an amicus brief in support of a petition for writ of mandamus filed by Wells Fargo in the Fifth Circuit Court of Appeals.  Wells Fargo requests vacatur of a federal district court’s order granting conditional certification of FLSA claims filed by home mortgage consultant plaintiffs seeking unpaid overtime. In its amicus brief, SIFMA argues that the court should reject the two-step certification standard applied by most district courts in FLSA actions and instead adopt a procedure that calls for meaningful certification review at the earliest feasible opportunity.  Read More

Employment Law

California Court of Appeal: Employer Cannot Compel Arbitration Unless There Is A Signed Arbitration Agreement

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Since the United States Supreme Court’s decision in AT&T Mobility v. Concepcion, more and more employers have sought to get out of court and into arbitration when dealing with employee disputes. The California Courts of Appeal, however, are not making that easy when it comes to an employer’s burden to show the existence of a valid agreement to arbitrate. Several months ago, the Second Appellate District held in Sparks v. Vista Del Mar Child and Family Services that an arbitration policy in an employee handbook was not enough to force arbitration. Similar decisions have reached the same conclusion, e.g., Carey v. 24 Hour Fitness USA, Inc., (5th Cir. Jan. 25, 2012). Read More

Employment Law

A New Term in the U.S. Supreme Court: Cases to Watch

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Earlier this month, the U.S. Supreme Court began a new term that is anticipated to include decisions on hot-button issues such as affirmative action, same-sex marriage and national security. The Court will also hear several significant cases in the employment context Read More