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Labor & Employment E-Note - April 17, 2014

In This Issue: - Employers Face Increasing Number of Religious Bias Suits - Small Business Owners Concerned About Overtime Pay Requirements - Rising Number of Wage Theft Lawsuits Highlight Enforcement Issues -...more

New Georgia Law Helps Protect Employers from Negligent Hiring and Retention Claims

On April 13, 2014, Georgia's governor signed SB 365 to, in part, protect employers that hire and retain employees with criminal convictions. Under the new law, if the Department of Corrections issues a "Program and Treatment...more

Ventress III Provides Another Tool for Airlines: Ninth Circuit Says Federal Aviation Act Preempts Pilot’s State Law Employment...

On March 28, 2014, the Ninth Circuit strengthened its Federal Aviation Act (the “Act”) preemption jurisprudence, holding that state law claims for retaliation and constructive termination are preempted under the Act when they...more

Utah Rejects the Multi-Employer Worksite Doctrine: General Contractors are Only Responsible for the Safety of Their Employees at a...

The Utah Supreme Court recently held in Hughes General Contractors, Inc. v. Utah Labor Comm’n that the multi-employer worksite doctrine, which makes a general contractor responsible for the safety of all workers at a...more

Ninth Circuit “Chases” Away Another Option for Removing PAGA Actions to Federal Court

In yet another setback for employers seeking to remove California wage and hour cases to federal court, the Ninth Circuit held that the federal Class Action Fairness Act (“CAFA”) provides federal courts with no basis to...more

Where the Whistle Blows: SEC Invites Circuit Split Over Reach of Dodd-Frank Anti-Retaliation Provision

The Securities and Exchange Commission recently weighed in on a whistleblower case pending in the Second Circuit, urging the court in Liu v. Siemens, A.G. to adopt the SEC’s interpretation of the Dodd-Frank Act’s...more

Feds’ Argument in Favor of Premium Tax Credit Gains Momentum, Still Under Attack in Federal Courts

A second federal district court judge has ruled in favor of the government on one of the most serious challenges to the Patient Protection and Affordable Care Act of 2010 (ACA). The court dismissed a challenge to the...more

Fourth Circuit Limits Scope of Employers’ Claims Under Computer Fraud and Abuse Act

In July 2012, the United States Court of Appeals for the Fourth Circuit issued an important decision limiting the claims employers can bring against disloyal current and former employees under the federal Computer Fraud and...more

Firearms! Recent Legal Opinion on "Guns in Parking Lots" Law Places Tennessee Employers In A Crossfire

Earlier this week, the Tennessee General Assembly's Office of Legal Services opined that the "Guns in Parking Lots" law "effectively prohibits" employers from discharging an employee for conduct allowed by that law. ...more

Complete Versus Conflict Preemption In ERISA Cases

Both state and federal courts have original jurisdiction over ERISA benefits actions. See29 U.S.C. § 1132(e)(1), ERISA § 502(e)(1). But litigants (and defendants in particular) have historically preferred the federal courts,...more

Supreme Court to Review Sixth Circuit’s Reinstatement of ERISA “Stock-Drop” Class Action

The Supreme Court recently agreed to resolve a circuit split on the pleading requirements for claims that ERISA fiduciaries imprudently invested employee stock ownership plan (ESOP) assets in the stock of the...more

“Loath to create a circuit split,” the Fifth Circuit Overturns NLRB’s D.R. Horton Ruling that Class Arbitration Waivers in...

The Fifth Circuit Court of Appeals recently rendered its long-awaited decision in D.R. Horton, Inc. v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013), revised December 4, 2013, which reversed the National Labor Relations Board...more

Class Action Waiver in Arbitration Agreement Survives NLRA Challenge

Finding the National Labor Relations Board failed to give appropriate weight to the Federal Arbitration Act, the federal Fifth Circuit Court of Appeals overturned a Board decision invalidating an arbitration agreement that...more

Courts Disagree over Jury Trial Right in ERISA Fiduciary Cases

Federal district courts in Missouri and Vermont have come to opposite conclusions regarding a right to jury trial with respect to fiduciary breach claims brought under ERISA section 502(a)(2). Applying the Supreme Court’s...more

Sorting Laundry: California Court Reaffirms Scope Of Uniform Trade Secrets Act

Angelica Textile Services, Inc. v. Park, No. D062405 (October 15, 2013): A California Court of Appeal recently held that claims of breach of contract, breach of fiduciary duty, and unfair competition are not “displaced” or...more

Not So Fast, My Friend! Eleventh Circuit Weighs In On NLRB Recess Appointment Issue

As we previously reported, the United States Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) struck down President Barack Obama’s “recess appointments” of three members of the...more

Ninth Circuit Finds That The Garcetti “Official Duties” Rule Does Not Apply To Public University Employee Academic Speech

Just this month, in Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013), the Ninth Circuit became the first federal circuit court to hold that techers employed by the state had a First Amendment right on speech made in academic...more

Will The EEOC Back Off Its Position On Background Checks?

In a year filled with controversy, the EEOC outdid itself when it charged two employers with discrimination based on their use of routine criminal background checks. But now after some well-publicized losses, the EEOC may be...more

Texas Messes with EEOC

When Texans say “Don’t Mess With Texas”, they’re speaking directly to the EEOC these days. The State of Texas recently sued the EEOC, seeking to prevent the EEOC from enforcing its 2012 Enforcement Guidance on employer use of...more

Reefer Madness: Employees May Use Medical Marijuana Yet Be Fired For Doing So

Despite twenty states allowing the use of medicinal marijuana and two more – Colorado and Washington – allowing recreational marijuana use, employers remain unaffected. Courts consistently find that employers may terminate...more

Texas Files Suit to Strike Down EEOC Background Check Guidance

The Equal Employment Opportunity Commission (“EEOC”) usually forces employers who are subject to Title VII to play defense. The State of Texas, however, has upended that approach. On November 4, 2013, Texas filed a federal...more

Halloween Special: Scary Results If Employers Overreach In Arbitration Clauses

No haunted house can scare general counsel as much as an opinion invalidating their company’s arbitration clause and thereby allowing a class action to proceed. So, here is a Halloween tale for all to keep in mind....more

Did You Know…The Continuing Saga Of Arbitration Agreements & Unconscionability

In light of the United States Supreme Court decision in AT&T Mobility LLC v. Concepcion, the California Supreme Court recently reversed its own prior decision where it had held that an arbitration agreement that requires an...more

Through the Lens of Concepcion: California Supreme Court Revisits the Validity of Agreements Requiring Employee Waiver of Wage...

Almost one year after the U.S. Supreme Court summarily vacated the original 2011 Sonic-Calabasas opinion (Sonic I), the California Supreme Court issued its opinion on remand in Sonic-Calabasas A, Inc. v. Moreno (Sonic II)....more

California Supreme Court Clarifies Application Of Supreme Court Arbitration Holdings On State Law

On October 17, the Supreme Court of California held that, while the Federal Arbitration Act (FAA) preempts a California state-law rule categorically prohibiting waiver of state pre-arbitration protections in arbitration...more

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