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Entries tagged “Employment Law”

Independent Contractor Versus Employee: New Law Ups the Ante for Misclassification

Insight Michael Moradzadeh Michael Moradzadeh · November 27, 2011

This blog post was prepared by Inna S. Wood and Michael Moradzadeh. 

Approximately one month is left for California employers to revise their employment contracts. The bill (SB 459) introduced by Senator Ellen Corbett on February 16, 2011 on employees’ misclassification was signed into law by California Governor Jerry Brown on October 9, 2011. It adds two new sections to the California Labor Code (i.e., Sections 226.8 and 2753) which establish the liability of employers for misclassifying their employees as independent contractors. The law becomes enforceable on January 1, 2012.

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EEOC Releases Long-Awaited Final Rule on ADAAA

Insight April 13, 2011

On March 24, 2011, the Equal Employment Opportunity Commission released its much anticipated Final Rule implementing the American with Disabilities Act Amendments Act of 2008 (ADAAA.) 

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Employee Emails From Company Computers Are Not Privileged

Insight February 11, 2011

A California appellate court in Holmes v. Petrovich ruled that an employee's emails sent to her attorney did not constitute "confidential communications between client and lawyer" when sent on a company computer.

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Uncertainty in Employer Social Media Policies

Insight January 26, 2011

The NLRB created significant uncertainty regarding the appropriate scope of social media policies when it filed a complaint that alleges a company violated the National Labor Relations Act by terminating an employee for posting negative commernts about her supervisor on the employee's personal Facebook page.

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Supreme Court Upholds Employer’s Right to Read Employee Text Messages

Insight June 21, 2010

The Supreme Court recently held in City of Ontario v. Quon that in certain circumstances an employer has the right to read text messages sent from and delivered to a pager issued by the employer to one of its employees. While reading employee text messages may generally violate the Fourth Amendment's guarantee against "unreasonable searches and seizures," the Court held in this case that since the employer conducted its review for a noninvestigatory, work-related purpose, it was withing its rights.

The source of the litigation arose in 2001 when the City of Ontario, CA, issued pagers to its employees, among them Jeff Quon who was working for the Ontario Police Department. Under the wireless service plan, monthly text allowances were limited and excess usage was charged. Quon was told by his supervisor that his text messages would not be monitored as long as Quon paid the overage fees. However, before acquiring his pager, Quon and others accepted the City's "Computer Usage, Internet and E-Mail Policy" under which the City "reserve[d] the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources." Although texts were not explicitly included in this policy, the City made clear that texts would be treated the same as e-mails. When Quon and other officers incurred overage charges numerous times, it was proposed that perhaps the text allowance was too low and that the department should determine whether the excessive texting was work-related, and if so, to expand the monthly text allowances. In fact, the vast majority of Quon's texts sent and received while at work were not work related, and he was disciplined. However, Quon and others felt the review had violated their Fourth Amendment rights and filed this action. The Court upheld the City's right to review the texts.

This opinion is an important reminder to employers to ensure that their personnel policies convey a clear message to employees regarding privacy issues related to use of company communication systems. Also, employers should make sure that their managers are aware of company policy and are not making misrepresentations to employees.

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Class Action For 1.5 Million Wal-Mart Employees Affirmed By Ninth Circuit

Insight June 08, 2010

In the recently decided case of Dukes v. Wal-Mart Stores, the Ninth Circuit upheld a 2004 district court's decision to certify a class that could potentially consist of 1.5 million women employed by Wal-Mart since 1997. Through this gender discrimination class action, the employees seek back pay, declaratory relief, and injunctive relief.

The plaintiffs allege that Wal-Mart engaged in discriminatory pay and promotion practices in violation of Title VII by paying female employees less than their male counterparts and giving fewer promotions to women than to men.

In 2005, after the district court held that class certification was appropriate under Federal Rule of Civil Procedure 23, Wal-Mart appealed that decision claiming that the class did not satisfy Rule 23(a)'s class requirements and that the potential size and cost of the claim violated Rule 23(b)(2). While the Ninth Circuit did not comment on the merits of the case, it held that there was no violation of Rule 23 that would prevent the class action. Wal-Mart plans to appeal the case to the Supreme Court.

The Ninth Circuit also held that when a district court is determining class status under Rule 23, it must apply a "rigorous analysis." It will be interesting to see whether this standard benefits parties opposing or advocating class certification in the future.

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New Employee Rights Poster Issued Under National Labor Relations Act

Insight May 27, 2010

The Department of Labor recently published a poster listing employees'; rights under the National Relations Labor Act (NRLA). The notice, which Federal contractors and subcontractors are required to display in a conspicuous location, informs employees that under the NRLA they are guaranteed:

  • the right to organize and bargain collectively with their employers;
  • the right to engage in other protected concerted activity; and
  • protection from certain types of employer and union misconduct.

The notice is required to be posted all places where notices to employees are normally displayed, whether physical or electronic. It is available in both a one-page 11 x 17 in. format and a two-page 8.5 x 11 in. format. There is a fact sheet provided which lists, among other things, exceptions to the posting requirements and information on posting the notices and acquiring translated posters. More information is available at the Office of Labor-Management Standards website.

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New Legal Trap for Employers in Hiring Independent Contractors

Insight Michael Moradzadeh Michael Moradzadeh · October 21, 2009

The United States Court of Appeals for the Second Circuit, in a September 10, 2009 ruling, held that an employer can be held liable for discriminatory hiring decisions made by its independent contractors. The case involved an independent contractor acting on behalf of the employer, telling the plaintiff that “they were looking for someone younger”.

The Second Circuit ruled that, even if the hiring decision is made by the authorized independent contractor, the employer was still responsible for the discriminatory hiring decision by the independent contractors. In a worse scenario, even if the independent contractor does not have the actual authority but the applicant thought that it did (“apparent authority” in legal terms), the employer is still liable.

Considering the harsh economy and fewer job opportunities these days, employers should be more cautious since the job applicant is more inclined to sue if he/she cannot get the job. Employers should avoid asking job applicant questions such as race, religion, national origin, gender and age, etc during the interview process; when entering into the independent contractor contract, it is a good idea to add an indemnification clause asking the independent contractor to indemnify the employer for any liability arising from the hiring process conducted by the independent contractor.

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Employment Service Agreements

Insight August 02, 2009

A new company should determine which of its workers are employees and which are independent contractors. The workers’ status will determine what benefits s/he is owed during employment and at its conclusion. A new company is building its reputation not just for its product, but for its staff and for fairness as an employer as well. ATo this end, a company should have a written agreement to clarify for its workers and itself the job expectations, benefits and responsibilities. A written contract delineates scope and hours of work, how the relationship is to continue, and how it is to be terminated.

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Non−competition Agreements

Insight Michael Moradzadeh Michael Moradzadeh · August 01, 2009

Can a part-time employee hold another job while working for you? Can he or she work for a direct competitor a year after he involuntarily leaves his employment? Does this change if he owns part of your business? What if the competitor is anywhere in the world instead of in the samecounty? Different states have different laws regarding the strictures that will be enforced once a worker leaves your company. These laws are affected by the stability of the economy. It is important for your company’s future and stability, that you take full advantage of whatever protections the applicable law affords.

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