Fenwick Employment Brief - February 15, 2012


In this issue: NLRB Steadfast Against Class Action Waivers in Mandatory Arbitration Agreements, But Whether Courts Will Follow Suit Remains Unclear; Recruiters Paid Commissions Based on Adjusted Gross Profit Held Exempt Commissioned Employees; Competitors Clash Over Alleged Unfair Competition Due To Purported Worker Misclassification; Employer Bound By Written Notice, Cannot Rely on Uncommunicated Method for Calculating FMLA Leave; Employee Who Worked Half Of Scheduled Shift Not Entitled To Reporting Time Pay, Even If Scheduled Shift Was Shorter Than Usual; California and U.S. Departments of Labor Join Forces to Fight Worker Misclassification; and FTC: Marketers of Background Screening Mobile Applications May Be Consumer Reporting Agencies.

Excerpt from 'NLRB Steadfast Against...':

As noted in our January 2012 FEB, on January 3, 2012 the National Labor Relations Board (the “NLRB” or the “Board”) determined in D. R. Horton, Inc. and Michael Cuda that requiring, as a condition of employment, arbitration agreements prohibiting employees from pursuing joint, class, or collective claims regarding their wages and hours or working conditions violates the “concerted activity” protections under the National Labor Relations Act (the “NLRA”). The Board’s decision came less than one year after the U.S. Supreme Court allowed a similar provision in a consumer arbitration agreement.

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