D.C. Circuit Confirms: Attorney-Client Privilege Applies to Internal Investigations of Whistleblower Complaints Conducted at the Direction of Counsel

The ability to preserve privilege for highly sensitive internal investigations conducted at the direction of attorneys is alive and well.  In a closely watched decision on the scope of the attorney-client privilege as applied to internal investigations, the D.C. Circuit granted defense contractor Kellogg Brown & Root’s (“KBR”) petition for a writ of mandamus and vacated a district court’s order that privileged documents from an internal investigation must be produced.

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N.D. Cal. Judge Puts a Check on Plaintiff’s Novel LinkedIn Background Check Theory Under FCRA

The federal Fair Credit Reporting Act (FCRA) has recently spawned an unprecedented number of class action complaints against employers for allegedly failing to comply with FCRA’s hyper-technical disclosure and consent requirements before conducting background checks or proceeding with “adverse actions.”  As these cases have evolved, plaintiffs have expanded their focus beyond traditional background checks and have started attacking employers’ use of ever-evolving technologies, like social media accounts, that are often accessible and searchable through just a few clicks of a mouse.

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Is Your Wellness Program Healthy? EEOC Provides Much Needed Guidance in Proposed Rule

On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule addressing how the Americans with Disabilities Act (ADA) applies to wellness programs that are part of group health plans and that include medical examinations or questions about employees’ health. Although not final and still open for public comment, this proposed rule provides important guidelines for employers in administering wellness programs.

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Are You Breaking The Rules? NLRB General Counsel Issues Extensive Report On Employer Rules and Handbooks

On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) issued a report (General Counsel Memorandum GC 15-04) summarizing recent NLRB enforcement action regarding many common employment policies. The report is relevant to nearly all private employers, regardless of whether they have union represented employees.  It is troubling because it finds that many seemingly innocuous, sensible employer handbook provisions and policies are unlawful because they could potentially be interpreted to chill employees’ rights to engage in concerted protected activity under the National Labor Relations Act.

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Can Anyone Stop Them? NLRB’s New “Quickie” Union Election Rules Set To Take Effect April 14.

On December 12, 2014 the NLRB adopted new union election rules, claiming that they will “modernize and streamline the process for resolving representation disputes.”  These rules will become effective April 14th of this year.

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And the Oscar Goes to . . . Equal Pay?  Arquette’s Oscar Speech Sparks Comparable Worth Bill in California

Just in time for Women’s History Month, California State Senator and Chair of the California Legislative Women’s Caucus, Hannah-Beth Jackson, introduced Senate Bill 358 (SB 358), which seeks to narrow the gender pay gap in California.  Citing best supporting actress Patricia Arquette’s recent Oscar acceptance speech where she called for, “wage equality once and for all and equal rights for women,” Senator Jackson hopes to turn that rallying cry into concrete legislation in California.

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Employers Finally Get a Break—Court Reverses $90 Million Verdict and Holds That Employers Are Not Required to Relieve Employees of All Duty During Rest Periods

On December 31, 2014, the Court of Appeal for the Second District of California held in an unpublished opinion that employers are not required to relieve employees of all duty during rest periods mandated by California state law.  In so holding, the court in Augustus v. ABM Sec. Servs., Inc., No. B243788, 2014 WL 7463154 (Cal. Ct. App. Dec. 31, 2014), reversed the trial court’s award of approximately $90 million dollars in statutory damages, interest, penalties, and attorneys’ fees to the employees.

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Medical Marijuana Cards: A New Scarlet Letter? First-of-its-Kind Lawsuit in Rhode Island Claims that Employer Discriminated on Basis of Medical Marijuana Cardholder Status

A Rhode Island graduate student has filed a lawsuit against a textile company, alleging that it discriminated against her because she used medical marijuana.  The complaint, filed by the local ACLU chapter on behalf of University of Rhode Island student Christine Callaghan, alleges that Darlington Fabrics Corporation rescinded a paid internship offer because Callaghan was a registered medical marijuana cardholder.  According to the complaint, it appeared that Callaghan was going to be given the internship until, during a meeting with a Darlington HR representative, Callaghan disclosed that she suffered from migraines and used medical marijuana to treat her condition—but that she would not bring marijuana with her onto the premises or show up for work after having taken marijuana.  A few days after the meeting, the representative contacted Callaghan and told her that Darlington would not be offering her the internship because of her status as a medical marijuana patient.  The suit is believed to be the first to invoke the anti-discrimination provisions of Rhode Island’s medical marijuana law.  Under the law, schools, employers, and landlords may not “refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” G.L. § 21-28.6-4(c).

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Extra! Extra! Read All About It: California Supreme Court Affirms Reversal of Class Certification Denial for Class of Newspaper Carriers

The California Supreme Court in Ayala v. Antelope Valley Newspapers, Inc. recently affirmed and remanded the reversal of a denial of class certification in an independent contractor misclassification case, emphasizing the standard terms of the contractual agreements between the parties. The plaintiffs were newspaper carriers for the defendant newspaper publisher who were contracted pursuant to two preprinted standard form contracts. Based on the theory that they were misclassified as independent contractors, plaintiffs alleged overtime, meal and rest break violations, and sought reimbursement for expenses and penalties. Read More

From D-Day to Afghanistan: Honoring Our Veterans by Reemploying Them

Seventy years ago, on June 6, 1944, the Allies’ liberation of Europe began with D-Day. Anyone who has had the privilege to travel to Saint-Laurent-sur-Mer in France and walk Omaha Beach and the surrounding area is struck by the incredibly steep and intimidating terrain faced by anyone approaching from the sea. Reentering the civilian workforce after completing military service in Iraq or Afghanistan should pose no such challenge. Read More