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March, 2011
Scott A. Freedman
Employers Must Provide Time for Both Meals and Rest Facebook Case Update Monitoring and Regulating Employee Conduct in the Age of Social Media Web Sites Another Round of Restrictions for Employment Arbitration Agreements Employers Must be Vigilant of Discriminatory Motives of Non-Decision Makers Court of Appeal Upholds Denial of Class Certification Because Issues Specific to Each Predominate United States Supreme Court Rules Oral Complaints Protected Under FLSA "Email and Twitter and Facebook, Oh My!" - Employment Training Sessions
Newsletter Contributors Christian A. Carrillo |
Beth A. Kahn
Employers Must Provide Time for Both Meals and Rest Recently, the California Court of Appeal issued a decision that plaintiffs will welcome, and of which employers should be aware. In United Parcel Service, Inc. v. Superior Court, --- Cal. App. 4th ---- (2011), 2011 WL 523633, the Court of Appeal held that Labor Code § 226.7 provides for two hours of premium pay per day when an employee misses both a meal and a rest period.
Facebook Case Update As we previously reported, in October 2010, the National Labor Relations Board filed a complaint against American Medical Response for firing one of their employees after the employee posted critical comments regarding her supervisor on Facebook. This was the first time the NLRB had intervened in which an employee's right to criticize their supervisor using social media, such as Facebook, was tested. Unfortunately, we will have to wait for any determination on this issue to come forth; on February 7, 2011, the NLRB issued a news release stating that the matter had been settled. Unresolved issues will remain until the next test case emerges. These issues include: whether an employee is engaged in concerted activity when posting on a social media platform; what is protected and unprotected on social media; do the same rules that apply to verbal communication in the workplace apply to social media. We anticipate that the NLRB will be more emboldened to take on such cases. In light of the continued ambiguity concerning the laws in this area, employers should continue to re-think their in-house social media policies.
Monitoring and Regulating Employee Conduct in the Age of Social Media Web Sites Technology should rightly be considered a double-edged sword for employers. On one hand, the Internet provides an employer with a seemingly limitless amount of information regarding current and potential employees at his or her fingertips. On the other hand, the enhanced ability to investigate an employee's background and conduct has created a legal minefield for employers: Should employers monitor or regulate employee use of the Internet and social media Web sites? What sorts of policies can employers create? These issues have come into the spotlight due to some recent potentially precedent-setting cases.
Another Round of Restrictions for Employment Arbitration Agreements On Feb. 24, in Sonic-Calabasas A, Inc. v Frank Moreno, the state Supreme Court declared that mandatory employment arbitration agreement provisions, which waive an employee's right to a "Berman" hearing, are contrary to public policy and unconscionable. Under California Labor Code Section 98, a "Berman" hearing is when an employee with a claim for unpaid wages seeks his right to an informal hearing in front of the Labor Commissioner. The Court further stated that such a ruling is not preempted by the Federal Arbitration Act.
Employers Must be Vigilant of Discriminatory Motives of Non-Decision Makers The United States Supreme Court has dealt employers another hurdle to overcome when making employment decisions. On March 1, 2011, the Supreme Court in Staub v. Proctor Hospital, 131 S.Ct. 1186, held that employers may be held liable for the discriminatory motives of supervisors who influence but do not make the ultimate employment decision.
Court of Appeal Upholds Denial of Class Certification Because Issues Specific to Each Predominate Recently, the California Court of Appeal has upheld the denial of class certification for employees because individual issues – not common issues – among those employees would determine the outcome of the lawsuit. In Tien v. Tenet Healthcare Corporation, the Court of Appeal has affirmed the denial of class certification based on the analysis previously put forth by Brinker Restaurant Corporation v. Superior Court and Brinkley v. Public Storage, Inc.
United States Supreme Court Rules Oral Complaints Protected Under FLSA The United States Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. (March 22, 2011) --- U.S. ---, has resolved the issue of whether oral complaints are protected under the Fair Labor Standards Act (“FLSA”).
"Email and Twitter and Facebook, Oh My!" - Employment Training Sessions In response to several recent cases revolving around employees’ use of social media which may be precedent-setting, Morris Polich & Purdy offers two types of employment training sessions relating to social media networking, hosted by MPP partner Scott A. Freedman: The Impact of Social Media on Employment Practices – for Employers Social Media Implications for Employees If your company would be interested in holding one or both of these sessions internally, or if you have any questions, please feel free to contact Scott Freedman at 213.417.5317, or sfreedman@mpplaw.com. For internal seminars there is a nominal charge to cover costs – we can provide those costs to you once we have an idea of what would be involved for your particular organization.
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