Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Federal DOL Issues Joint Employer Guidance to Interpret FLSA and MSPA

by

Posted in Family Leave / Wage and Hour

On February 2, 2016

The U.S. Department of Labor (“DOL”), Wage and Hour Division (“WHD”) recently issued an Administrator’s Interpretation (“Interpretation”) on joint employer liability under the Fair Labor Standards, Act, 29 U.S.C. § 1801 et seq. and the Migrant Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 201 et seq., that provides additional guidance to employers but also may demonstrate the DOL’s increased efforts to focus on joint employer liability for wage and hour compliance. According to the WHD, the workplace increasingly involves use of outsourcing, shared employees, integrated employers, and other forms of co-dependent business models. The WHD seeks to ensure compliance with wage and hour laws for entities that rely upon such alternative workforces. While the Interpretation is not binding upon the courts and constitutes guidance for employers, it lists factors extrapolated from court decisions, other DOL guidance, and related sources that should be considered where an employer utilizes alternative labor sources or has sister or related entities that share common operations or are interdependent.

Safe Harbor 2.0: Still a Work in Process

by

Posted in E-Commerce / Privacy and Data Security

On December 17, 2015

Last month, judges from the European Court of Justice, the European Union’s top court, issued a judgment striking down a 15-year old agreement, known as the Safe Harbor framework, which allowed American and European businesses to freely move personal data between the two regions. This ruling impacts nearly 4,000 businesses that currently rely on Safe Harbor framework to transfer data between the U.S. and Europe and requires all businesses to revaluate their compliance with Europeans standards.

“Mere Continued Employment” is Insufficient Consideration for Non-Compete Agreement in Pennsylvania

by

Posted in Restrictive Covenants

On November 24, 2015

Last week, in Socko v. Mid-Atlantic Systems of CPA, Inc., the Supreme Court of Pennsylvania decided that restrictive covenants not to compete are unenforceable if made during a worker’s term of employment unless supported by “new and valuable consideration, beyond mere continued employment.” That is so, according to the Court, even if the agreement contains language that would otherwise obviate the requirement of consideration pursuant to the Uniform Written Obligations Act (“UWOA”). That statute provides that “[a] written release or promise . . . shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.”

Fifth Circuit Upholds Arbitration Agreement Prohibiting Class/Collective Actions and Cautions NLRB to Reconsider Board Policy

by

Posted in Alternative Dispute Resolution

On November 5, 2015

Last week, in Murphy Oil USA, Inc. v. NLRB, the United States Court of Appeals for the Fifth Circuit upheld an arbitration agreement requiring employees to arbitrate claims on an individual basis, thereby reaffirming its holding in D.R. Horton, Inc. v. NLRB, despite the National Labor Relations Board’s (“NLRB”) aggressive attempt to find arbitration agreements unlawful. The case is noteworthy because the court rebuffed the Board’s effort to circumvent D.R. Horton and cautioned the NLRB “to strike a more respectful balance between its views and those of circuit courts” that review them. One wonders whether the NLRB will change its current stance against arbitration agreements that prohibit class/collective actions. Regardless, the Fifth Circuit’s decision helps to settle the current state of the law at the circuit court level that arbitration agreements and class/collective action waivers are lawful under the National Labor Relations Act (“NLRA”).

Third Circuit Holds That Absent Class Members Need Not Show Standing and Reiterates Comcast’s Reiteration of Basic Rule 23 Principles

by

Posted in Class Action Defense

On October 29, 2015

In a precedential opinion in Neale v. Volvo Cars of North America, the U.S. Court of Appeals for the Third Circuit held that putative class members need not establish Article III standing, and emphasized that the Supreme Court’s decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013) “was not breaking any new ground” because “the predominance analysis was specific to the antitrust claim at issue.”

NLRB Ruling is Problematic for Employer Workplace Investigation Policies

by

Posted in Labor

On October 26, 2015

The National Labor Relations Board (“NLRB”) decided that an employer’s workplace investigations policy, which recommends employees keep an internal investigation confidential, violated the National Labor Relations Act (“NLRA”) because it interfered with employees’ rights to communicate regarding matters affecting terms and conditions of employment. The ruling creates a quandary for employers to maintain effective workplace investigation policies and practices including confidentiality statements in anti-harassment policies.

Federal Circuit Considering En Banc Rehearing in Ariosa Diagnostics, Inc. v. Sequenom, Inc.

by

Posted in Patent

On October 6, 2015

The United States Court of Appeals for the Federal Circuit is deciding whether to reconsider en banc its panel decision in Ariosa Diagnostics, Inc. v. Sequenom, Inc. Numerous amici have lined up in support of rehearing. At stake is what room recent U.S. Supreme Court jurisprudence leaves for obtaining patent claims involving diagnostic innovations that use established processes.

Reminder: NYC Ban the Box Law Effective October 27, 2015

by

Posted in Discrimination

On October 1, 2015

Employers must be aware of the changes to the New York City Administrative Code effective October 27, 2015, which prohibits employers from asking applicants regarding their criminal histories (typically called “Ban the Box”) prior to a conditional offer of employment. Under the new law called the Fair Chance Act (the “Act”) – which affects employers of four or more employees – employers may not (1) ask the applicant during an interview, (2) include a question on an application, or (3) conduct a separate search using public sources, such as the internet, to elicit information regarding an applicant’s criminal convictions or arrest records. The Act contains limited exceptions for persons who apply for law enforcement positions or for licenses concerning the regulation of firearms and explosives. Also, the Act does not prevent an employer from conducting a background check required by state, federal or local law that mandates criminal background checks or that bars employment based on a criminal history. An example of such requirement is regulations of a self-regulatory organization such as FINRA.

NLRB Expands Reach by Altering Joint-Employer Standard

by

Posted in Labor

On September 17, 2015

Recently, in Browning-Ferris Indus. of Cal., the National Labor Relations Board continued to expand its reach and once again altered decades old law in favor of labor unions, this time by making it easier for unions to hold multiple businesses responsible for bargaining with a single group of workers over employment conditions and terms. The decision has potentially far-reaching implications for companies that enter into staffing arrangements with third parties, including franchisors, who now may have legal obligations to bargain with unions where they never before did.

Employee May Pursue Claims Under FLSA For No Lactation Breaks

by

Posted in Discrimination / Employment Agreements / Reductions in Force

On September 16, 2015

In Lico v. TD Bank et al., a federal court in the Eastern District of New York upheld an employee’s right to bring claims under the Fair Labor Standards Act (FLSA) against her employer, TD Bank (“the Bank”), for failure to provide adequate facilities and time for lactation breaks. The FLSA requires employers covered by the FLSA to provide employees (1) reasonable unpaid time at work to express breast milk for up to one year following childbirth and (2) a place, other than a restroom, that is not visible and is free from intrusion to do so.

Connect:

About Gibbons

With 200 attorneys, Gibbons is a leading law firm in New Jersey, New York, Pennsylvania, Delaware, Washington, DC, and Florida, ranked among the nation’s top 200 by The American Lawyer. More…

Subscribe

Archived Blog Posts

Categories