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Employment Archives

Supreme Court Sides with DOL Regarding Agency Rulemaking

In the case Perez v. Mortgage Bankers' Association (2015 U.S. LEXIS 1740), the Supreme Court ruled in favor of the Department of Labor ("DOL") and upheld changes the DOL made to an interpretive rule. In 1999 and 2001, the DOL issued interpretive rulings holding that mortgage-loan officers do not qualify as administrative officers and, hence, are not subject to the Fair Labor Standards Act ("FLSA") overtime exemption. In 2004, the DOL changed its ruling and said that mortgage-loan officers do, in fact, fall into the FLSA's overtime exemption category. Finally, in 2010, the DOL went back on its 2004 decision, and ruled without "notice or comment" that the loan officers do not fall under the exemption. In siding with the DOL, the Supreme Court also overturned the "Paralyzed Veterans Doctrine" laid out by the Second Circuit Court of Appeals in Paralyzed Veterans of America v. D.C. Arena L.P (117 F. 3d 579).1

Purple Communications, Inc. and Communications Workers of America, AFL-CIO

At the heart of the National Labor Relations Act ("NLRA") is an employee's Section 7 right to participate in concerted activity and communicate with fellow employees regarding conditions of employment. Prior to the ruling of the National Labor Relations Board ("NLRB" or "the Board") in Purple Communications, Inc. and Communications Workers of America, AFL-CIO ("Purple Communications"), email communication between employees exercising Section 7 rights could be lawfully banned by an employer so long as it was not done so in a discriminating way. In Purple Communications, the Board modified its stance on email communication to adapt to the changing nature of the workplace.1 The issue in Purple Communications was whether Section 7 of the NLRA extended to email communication between employees. In Purple Communications, the Board held that employees, that have access to the company's email, are allowed to use it for concerted activity during non-working time. Prior to the decision in Purple Communications, the NLRB broadly restricted employees' activity under the ruling in Guard Publ. Co. v. NLRB ("Register Guard".)2 Register Guard weighed employees' Section 7 rights against the employer's property right and held that an employer could restrict employee usage of its email services without justification, so long as it did not discriminate against union activity. In other words, the employer's property right over its email system weighs more heavily than an employee's Section 7 rights. The Board's decision in Register Guard was motivated by an archaic view of email technology. The Board updated its antiquated view in Purple Communications. The decision outlined the importance email has in a changing work environment and it shows that email usage has increased over time and has become the "natural gathering place3" of the modern work site. Conversely, Register Guard incorrectly compared email to modes of communication like bulletin boards and telephones. In Purple Communications, the Board demonstrated the importance of email to the modern workplace and found that there is no reasonable protection of concerted activity when the primary mode of communication is broadly restricted. With there previously being such broad restrictions placed on Section 7 rights by Register Guard, Purple Communications contains a new analytical framework to govern the use of an employer's email in concerted activity. Purple Communications only applies, however, to email communications between employees that have been given access to the company's email and the employer can still monitor those communications in a non-discriminatory manner. In addition, Purple Communications changes the weighing mechanism from the owner's property rights to management's interests. That is to say that Section 7 rights should instead be compared to an employer's managerial interest in production and discipline. The change to "managerial interest" means that the employer cannot restrict email usage without showing that email communication in some way hurts the company in a critical business aspect, such as productivity or production. Keep in mind, however, that the change does not mean that every employee is entitled to be granted access to an email account on the company's network. In other words, the decision protects the content an employee might send, but it does not necessarily mean each employee gets an email account. The aim of the new framework is to enhance Section 7 rights at the heart of the NLRA. What You Can Do If You Have A Company Email Account

Shepherd, Finkelman, Miller & Shah: Employment law

A number of veteran litigators at Shepherd, Finkelman, Miller & Shah started out as labor attorneys. Since then, SFMS lawyers have represented a wide range of clients, including labor organizations, private employers, public employers, employee plaintiff groups and individual employees.

Uber Pushes Federal Court to Find Drivers Are Not Employees

Uber Technologies Incorporated ("Uber" or the "Company") is a company that provides a virtual marketplace, via website or cell phone application, for passengers to find available drivers. A class of drivers that utilize Uber to find customers is bringing a class action suit against the Company before Judge Edward Chen in the United States District Court for the District of Northern California. The class claims that Uber did not pay its drivers the full gratuity amount that Uber built into the price it charges customers and that the class members should have received as employees. Uber has filed for summary judgment, claiming that the drivers are not actually employees and are, therefore, unable to sue the company.1

ERISA: What is it? And how does it protect your retirement funds?

The Employment Retirement Income Security Act of 1974, commonly called ERISA, is a federal law that establishes standards for protecting the retirement funds of millions of Americans who work in private industry. There is no requirement under ERISA that employers must provide a pension plan, but employers who do establish retirement plans -- a 401(k), for example -- must the meet the minimum standards under the law.

135 brokers expected to share in Wells Fargo settlement

To settle a class action lawsuit against Wells Fargo, a deal has been proposed to divide $5.6 million among about 135 brokers. The suit was brought by two brokers who formerly worked at Wells Fargo Advisors LLC, and the case may be of interest to individuals and companies with complex employment agreements involving bonuses and other benefits.

Healthcare provider settles qui tam claim for $25 million

The federal False Claims Act allows individuals, called relators, to bring lawsuits -- qui tam claims -- on behalf of the government, and the relators may collect a portion of any amount of money the government recovers. Since the mid-1980s, the United States government has recovered more than $15 billion through qui tam claims, and that figure continues to rise.

NLRB: Overly broad handbook policies unenforceable

Employers often go to great lengths to protect their company. To do this, they may develop strict workplace practices with which they ask employees to comply. If an employee violates a contract or the requirements set in an employee handbook, there may be grounds to take legal action against the employee.

Is lack of paid medical leave driving women out of the workplace?

Employment law is constantly changing, and one aspect of employment that has lately received increased attention is paid leave. The White House Council of Economic Advisers has reported that paid leave is offered to only 59 percent of employees in the United States, and the U.S. is the only developed country whose federal policy doesn't offer paid maternity leave.