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Employment Law News Archives

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Supreme Court Reaffirms Applicability Of Federal Arbitration Act

Last week, the Supreme Court reaffirmed the authority of the Federal Arbitration Act ("FAA") over all state and federal claims within its purview. Facts: Eddie Lee Howard and Shane D. Schneider began working for Nitro-Lift Technologies, LLC, in 2008 and 2009, respectively. 273 P.3d 20, 24. During their employment, Howard and Schneider entered into confidentiality and non-competition agreements with Nitro-Lift that contained an arbitration clause. 2012 WL 5895686, at * 1. The arbitration clause in question stated "Any dispute, difference or unresolved question between Nitro-Lift and [the employees] shall be settled by arbitration..." Id.

Supreme Court to Hear Oral Arguments in Symczyk v. Genesis Healthcare Corp.

On December 3, 2012, the Supreme Court will hear oral arguments in Symczyk v. Genesis HealthCare Corp., 656 F.3d 189 (3d. Cir. 2011). On appeal from the Third Circuit, a Supreme Court decision in favor of the employer could effectively end use of collective actions under the Fair Labor Standards Act ("FLSA"). Facts:  Laura Symczyk worked as a registered nurse for Genesis HealthCare Corp. ("Genesis") from April through December 2007. 656 F.3d at 190. During her employment, Genesis implemented a policy of reducing the pay of certain employees for mandatory meal breaks, whether or not the employees performed work during the thirty minute period. Id. As discussed in a previous blog post, such deductions violate the FLSA, and thus Symczyk and other employees may be owed a substantial amount of overtime pay.

iDOL - Keeping Track of Hours in the Workplace

In the age of the iPad, iPhone, and iPod, businesses and individuals are finding new ways to make their lives simpler. Apple's App Store now offers over half a million apps, many of which are free or are only $0.99. These apps can entertain us, connect us to others, pay our bills, turn on our car or even tell us the name of the song playing over the radio. We can now add the Department of Labor  ("DOL") to the list of developers with apps available in Apple's App Store for free download. The app. In 2011, the DOL's Wage and Hour Division released its first app, DOL Timesheet. DOL Timesheet allows employees to record their hours worked and calculate the amount of wages that may be owed by their employer. The calculations include overtime pay at a rate of one and one-half times the regular rate of pay as provided for by the Fair Labor Standards Act ("FLSA"). See 29 U.S.C. § 207.

U.S Supreme Court Interprets Anti-Retaliation Provision

Earlier this year, in the case, Thompson v. North American Stainless, L.P., 131 S.Ct. 863 (2011), the United States Supreme Court interpreted the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 ("Title VII"), a statute that, among other things, protects employees from retaliation for making complaints of racial, religious, national origin and sex discrimination. The Court's decision is good news for employees. The Facts. Miriam Regalado and her fiance, Eric Thompson, both worked for North American Stainless ("NAS"). Ms. Regalado filed a charge of sex discrimination against NAS, and in February 2003 the Equal Employment Opportunity Commission notified NAS. Three weeks later, NAS fired Mr. Thompson.

The Food Safety Modernization Act

On January 4, 2011, President Obama signed into law the FDA Food Safety Modernization Act (the "Act").  This Act amends the Federal Food, Drug, and Cosmetic Act ("FFDCA") with the stated purpose of improving food safety "from farm to table." Section 402 of the Act provides broad whistleblower protection for employees engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food. Protected Conduct. Whistleblowers may not be discharged or otherwise suffer adverse employment actions for engaging in certain protected activity such as when an employee:

Before You File A Texas Payday Law Claim

The Texas Payday Law-Chapter 61 of the Texas Labor Code-was designed to provide individuals with a quick efficient way to collect wages due them without having to hire a lawyer or get involved in protracted litigation. However, what was designed as an additional remedy for employees stiffed by their employers has become an additional defense for employers looking to stiff their employees. In 2008, the Texas Supreme Court decided a case called Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008).  In that case, the employee (Mr. Igal) filed a Payday Law claim with the Texas Workforce Commission ("TWC"), who decided the claim had not been timely filed. Claims filed under the Texas Payday Law must be filed with the TWC within 180 days from the date the wages become due. Mr. Igal then filed a lawsuit against his former employer for breach of contract.  The deadline in Texas for filing a breach of contract claim  for wages is 4 years from the date the wages became due. The Supreme Court held that because Mr. Igal had chosen to file the wage claim with the Texas Workforce Commission, after the TWC ruled against him, he could no longer pursue a claim in court for breach of contract. What this means is if you have a wage claim for a significant amount of money, you should seek legal advice before filing a Payday Law claim with the TWC. Some claims are better suited for a judge or jury than an administrative determination by the TWC. Conversely, some claims have a better chance to prevail at the TWC than in court. It's unfortunate a law intended to simplify the collection of wages has, because the Texas Supreme Court's decision, complicated it. It increases the price of justice, and no one, except lawyers, benefit from that. Bottom line: if you have a significant wage claim, and have time before the statute of limitations deadline, talk to a lawyer before you file it. GSF

Employment Law Provisions Of Dodd-Frank Wall Street Reform And Consumer Protection Act

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act ("WSRCPA").  I have addressed here in previous posts the employment law provisions of the WSRCPA.  For easier reference I have summarized those provisions here with links to the posts. 1.  Amendments to the Commodity Exchange Act. Section 748 of the WSRCPA amends the Commodity Exchange Act by providing a financial award for whistleblowers and protecting them from retaliation. 2.  Amendments to the Securities Exchange Act. Section 922 of the WSRCPA amends the Securities Exchange Act by providing a financial award for whistleblowers and protection from retaliation. 3.  Amendments to the Sarbanes-Oxley Act. Section 929A of the WSRCPA amends the Sarbanes-Oxley Act of 2002 ("SOX") by prohibiting retaliation against those employed by subsidiary and affiliates of publicly traded companies, extending the statute of limitations on SOX retaliation claims from 90 to 180 days, providing for a jury trial and making pre-dispute SOX claim waivers and arbitration agreements unenforceable. 4.  The Consumer Financial Protection Act of 2010. The WSRCPA includes the new Consumer Financial Protection Act of 2010 ("CFPA").  The CFPA creates a Bureau of Consumer Financial Protection that regulates the consumer financial products and services industry. Section 1057 of the WSRCPA is the anti-retaliation provision of the CFPA that protects whistleblowers in the financial products and services industry and provides them with a private cause of action. 5.  Amendments to the False Claims Act. Section 1079A of the WSRCPA amends the False Claims Act to broaden the protections afforded whistleblowers involved in qui tam actions to include those "associated with" the whistleblower.  It also adds a three year statute of limitations. The WSRCPA is consistent in its attempts to protect whistleblowers with more favorable procedures, broader protections and damages and a disdain for employer-mandated arbitration.  GSF

Dodd-Frank Wall Street Reform And Consumer Protection Act (Part V)

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act ("WSRCPA"). This post is the fifth in a five-part series on the employment law provisions of the WSRCPA. This post examines Section 1079A of the WSRCPA, which amends the False Claims Act. The False Claims Act. The False Claims Act ("FCA") permits whistleblowers to bring a lawsuit ("a qui tam action") on behalf of the federal government against federal contractors who have committed fraud against the federal government. Whistleblower Reward Under The FCA. The whistleblower can recover between 15% and 25% of the monies collected by the government as a result of the qui tam action. Popular targets for FCA lawsuits have been defense contractors and those involved in healthcare fraud. FCA Protects Whistleblowers. The FCA protects employees, contractors and agents from threats, harassment, discrimination, demotion, suspension and discharge resulting from their attempts to stop violations of the FCA. Amendments To The FCA. Section 1079A of the WSRCPA amends the FCA to broaden the protections afforded whistleblowers involved in qui tam actions to include those "associated with" the whistleblower.  It also adds a three year statute of limitations. The Takeaway. Section 1079 is consistent with the other employment provisions of the WSRCPA which strengthen the protections of whistleblowers in the workplace.  GSF

Dodd-Frank Wall Street Reform And Consumer Protection Act (Part IV)

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act ("WSRCPA"). This post is the fourth in a five-part series on the employment law provisions of the WSRCPA. This post examines employment-related provisions Section 1057 of the WSRCPA, which is part of the new Consumer Financial Protection Act of 2010 ("CFPA").  The CFPA creates a Bureau of Consumer Financial Protection ("Bureau") that regulates the consumer financial products and services industry. Which Employers Are Affected. The CFPA prohibits a "covered person or service provider" (anyone that offers or provides a "consumer financial product or service") from engaging in certain types of discrimination against employees.  The definition of "financial product or service" found in Section 1002(15) of the WSRCPA is key because it determines who is a covered person or service provider.  This definition is long--too long to list here--and the coverage is broad. Who Is Protected. "Covered employee[s]" are protected.  A covered employee is any individual performing tasks related to the offering or provision of a consumer financial product or service.  This apparently includes anyone from the receptionist to the CEO of the institution. What Is Protected. Covered employees are protected against discrimination or termination on the basis of: (1) having provided, or been about to provide, information to the employer, the Bureau, or any other government authority or law enforcement agency relating to any act or omission the employee reasonably believes is a violation of the CFPA or any conduct prescribed by the Bureau;  (2) participating in a Bureau proceeding; (3) instituting a proceeding under any Federal consumer financial law; or (4) having objected to, or refused to participate in, any activity reasonably believed to be in violation of any law, regulation or standard of or under the jurisdiction of the Bureau. Procedure. Unfortunately the procedure set up for adjudicating these claims is a Byzantine combination of an administrative review by the Department of Labor ("DOL"), with an appeal to the local circuit Court of Appeals, or, if the DOL does not act in a timely fashion in adjudicating the claim, a jury trial in a federal district court.  A claim must be filed with the DOL within 180 days of the violation. Remedies. The remedies available to a claimant include reinstatement, back pay with interest, compensatory damages, costs and attorney's fees.  Like the other employment laws in the WSRCPA, pre-dispute waivers and arbitration agreements are not enforceable. GSF

Dodd-Frank Wall Street Reform And Consumer Protection Act (Part III)

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act ("WSRCPA"). This post is the third in a five-part series on the employment law provisions of the WSRCPA. Sarbanes-Oxley Amendments. This post examines those provisions of the WSRCPA which amend the Sarbanes-Oxley Act of 2002 ("SOX"). SOX Failed To Protect Whistleblowers. In terms of protecting whistleblowers from retaliation, SOX has been a big disappointment.  SOX cost American businesses a lot of money and created lots of work for accounting firms, but it fell well short of protecting employees who valued obedience to law and conscience over a paycheck. The SOX Numbers. Since SOX became law, the United States Department of Labor ("DOL"), who investigates SOX whistleblower claims, has found in favor of whistleblowers only 25 times out of the 1,066 claims filed through June 30, 2010. If you like percentages, that means the DOL finds in favor of whistleblowers only 2% of the time. Why SOX Claims Fail. The reasons whistleblowers don't prevail in SOX claims are essentially three.  First, the DOL is, like most government agencies, understaffed.  They don't have the manpower to thoroughly investigate claims.  Second, retaliation is a matter of intent and DOL investigators don't like resolving cases over issues of intent.  Juries are much better at determining questions of intent. Third, the combination of a ridiculously short statute of limitations (90 days), narrow reading of the law defining protected conduct and who is protected led to the DOL dismissing many cases as a matter of law before even reaching the question of whether there was any retaliation. The WSRCPA takes serious steps toward addressing some of these deficiencies. The Amendments. The WSRCPA amends SOX by changing the statute of limitations from 90 days to 180 days after the employee became aware of the violation. The WSRCPA also extends the anti-retaliation protections to employees of any subsidiary or affiliate whose financial information is included in the consolidated financial statements of a publicly traded company. Lastly, the WSRCPA provides for a trial by jury of SOX claim appealed from the DOL and makes any pre-dispute arbitration or waiver agreement of a SOX claim unenforceable. The Takeaway. The WSRCPA takes some major steps toward helping SOX fulfill one of its major goals of protecting whistleblowers. GSF

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