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Since the first Facebook-related employment case in November 2010, there have been in excess of 150 new NLRB complaints. In an effort to clarify NLRB's position in this type of case, NLRB's Office of General Counsel has released further guidance for Employers and Employees.
9th Circuit Upholds the One-Strike Rule Regarding Drug Use by Job Applicant On Sept. 21, the 9th U.S. Circuit Court of Appeals issued its decision in Lopez v. Pacific Maritime Association, 2011 DJDAR 14348 (9th Cir. Sept. 21, 2011), finding that the Americans with Disabilities Act and the Fair Employment Housing Act do not protect people who are using illegal drugs when they apply for a job. Companies may lawfully exclude job applicants who were using illegal drugs when they apply for a job, and a disparate impact claim will fail absent any evidence that the practice of permanently disqualifying applicants with drug use excluded recovering or recovered drug addicts disproportionately.
Sullivan v. Oracle - Update and Implications This summer, the Supreme Court of California announced that non-resident employees may sue their California-based employer for overtime pay under California Labor Code sections 510 and 1194 based on work they performed in California, even if that work was only on a temporary or short-term basis. The Court suggested, without holding, that the same overtime requirements may apply to non-California employers who send non-resident employees to California on temporary or short-term work assignments.
Beware of What You Say: "Me Too" Evidence Allowed in Sex Harassment Lawsuit Just when you thought it was safe to make comments out of earshot of a potential plaintiff, a California Court of Appeal in the case of Pantoja v. Anton reversed a judgment in favor of the employer and ordered a new trial because the trial court should have admitted "me too" evidence of alleged racial and gender bias.
Uninterrupted Overnight Work Shifts Not Subject to Split Shift Premiums A recent case, Securitas v. Superior Court (2011) 197 Cal.App.4th 115, is helpful in clarifying what constitutes – and does not constitute – a split shift for purposes of Industrial Welfare Commission Wage Order No. 4. Wage Order No. 4 entitles employees to a potential additional hour of pay at the minimum wage for any workday they work a split shift. The Wage Order defines "split shift" as "a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods."
Good News - Zelasko-Barrett v. Brayton-Purcell, LLP In a recent case, Zelasko-Barrett v. Brayton-Purcell, LLP, the California Court of Appeal held that a law school graduate who was working at a law firm but had not yet passed the bar examination was nevertheless a "professional" within the terms of the Labor Code, and so was not entitled to overtime pay. The graduate (who waited until he left the firm to assert this claim) argued that a "professional" must be licensed and so, until he passed the bar and obtained his license to practice law, he was entitled to overtime pay. The Court disagreed and, affirming the trial court’s grant of the employer’s summary judgment, held that the graduate had been engaged in "an occupation commonly recognized as a learned or artistic profession," particularly because the graduate had exercised "discretion and independent judgment" when performing his work. The fact that he was supervised by a licensed attorney, and that his supervisor was required to approve and sign his work, did not preclude the graduate from being considered a "professional."
Employment Events & Distinctions for 2011
Beth Kahn selected for Martindale-Hubbell® Bar Register of Preeminent Women Lawyers™ - Labor and Employment Law 2011 SPEECHES & PUBLICATIONS Upcoming
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