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Service: Labor and Employment
May 17, 2013 Briefing Third Circuit Finds Recess Appointment of NLRB Member Invalid
A second U.S. Court of Appeals has ruled that recess appointments of National Labor Relations Board members were unconstitutional because they did not occur during an intersession recess of the Senate. NLRB v. New Vista Nursing & Rehab., 3d Cir., No. 11-3440, (5/16/13).
May 9, 2013 Briefing D.C. Circuit Invalidates NLRB Notice-Posting Rule
The U.S. Court of Appeals for the D.C. Circuit has struck down a National Labor Relations Board regulation requiring businesses to post notices of workers’ rights under the National Labor Relations Act, holding that such a rule violates the free speech rights of employers under federal labor law. Nat’l Assoc. of Manufacturers v. NLRB, D.C. Cir., No. 12-5068 (May 7, 2013).
April 24, 2013 Briefing U.S. Supreme Court Holds That FLSA Collective Action May Be Mooted By Full Offer of Judgment
On April 16, a divided United States Supreme Court ruled that an employee who filed a Fair Labor Standards Act case could not pursue a proposed collective action after she received an offer that would have given her full relief. Genesis HealthCare Corp. v. Symczyk, No. 11-1059 (Apr. 16, 2013).
April 18, 2013 Briefing U.S. Supreme Court Limits Equitable Defenses in ERISA Reimbursement Actions
It is common for an employer group health plan subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended to contain provisions that allow the plan to seek reimbursement of amounts paid by it to one of its beneficiaries for injuries if the beneficiary later recovers payment from a third party either through a judgment or a settlement.
April 4, 2013 Newsletter Labor News
Select events and news from the world of organized labor for March2013
April 2, 2013 Briefing U.S. Supreme Court Holds That Individual Damages Issues May Preclude Class Certification
For years now, some courts have been willing to allow class actions to proceed in the face of individualized damages issues, on the theory that those issues can be worked out later, in a separate damages proceeding.
March 22, 2013 Briefing New York City Amends Human Rights Law to Cover “Unemployment”
Last week, overriding Mayor Bloomberg’s veto, the New York City Council passed a bill (Int. No. 814-A) amending the New York City Human Rights Law to prohibit discrimination based on a job applicant’s unemployment status.
March 21, 2013 Briefing U.S. Supreme Court Holds that Plaintiffs May Not Circumvent CAFA’s Clear Purpose by Creative Pleading
Earlier this week, the U.S. Supreme Court issued a significant decision that signals that the Class Action Fairness Act should be given its full reach. In Standard Fire Insurance Company v. Knowles, 11-1450, the Court held that a putative class representative could not avoid federal jurisdiction by stipulating that the class will not seek damages exceeding CAFA’s $5 million jurisdictional threshold.
March 5, 2013 Newsletter Labor News
Select events and news from the world of organized labor for February 2013
March 1, 2013 Briefing OFCCP Rescinds Compensation Standards, Voluntary Guidelines and Issues New Directive to Review Pay Practices
On February 28, 2013, the OFCCP issued a Notice of Rescission rescinding two key compensation analysis policies—Compensation Standards and Voluntary Guidelines—(in effect since 2006) deeming them unworkable and ineffective.
February 19, 2013 Briefing Amendment to PRC Labor Contract Law Includes Significant Changes Regarding Dispatch Arrangements
On December 28, 2012, the Standing Committee of the National People’s Congress amended the PRC Labor Contract Law.
February 11, 2013 Briefing Seventh Circuit Affirms Decertification of Wage and Hour Class Action
On February 4, the Seventh Circuit Court of Appeals issued an important decision that may impact the ability of plaintiffs to maintain large wage and hour class and collective actions. Espenscheid v. DirectSat USA, LLC, Case No. 12-1943 (7th Cir. 2013). The Court of Appeals affirmed a district court ruling that decertified, near the eve of trial, a class of more than 2,300 class members alleging various wage and hour violations.
February 11, 2013 Briefing California’s Fair Employment and Housing Act Significantly Reorganizes Procedure for Prosecuting Discrimination Cases
On January 1, 2013, the Department of Fair Employment and Housing implemented a reorganization plan meant to streamline the process and reduce the cost of litigating discrimination cases in the state of California.
February 7, 2012 Briefing U.S. Department of Labor Issues Final Rule & Survey Report on the Family and Medical Leave Act’s 20th Anniversary
The U.S. Department of Labor marked the 20th anniversary of the Family and Medical Leave Act, by issuing a Final Rule implementing two significant expansions of FMLA coverage related to veterans, military families, and airline personnel and flight crews.
February 5, 2013 Newsletter Labor News
Select events and news from the world of organized labor for January 2013
January 25, 2013 Briefing D.C. Circuit Rules Obama Recess Appointments Unconstitutional
The U.S. Court of Appeals for the District of Columbia unanimously ruled today that President Barack Obama’s recess appointments to the U.S. National Labor Relations Board last year were “constitutionally invalid” because the Senate was not in recess at the time of the appointments. Noel Canning v. NLRB, 12-1115 (D.C. Cir. Jan. 25 2013).
January 15, 2013 Briefing New California Disability Regulations
California’s Office of Administrative Law recently approved the state’s Fair Employment and Housing Commission’s proposed pregnancy disability regulations.
January 7, 2013 Newsletter Labor News
Select events and news from the world of organized labor for December 2012
December 31, 2012 Briefing NLRB Finishes 2012 by Issuing Numerous Notable Decisions for Union and Non-Union Employers
In the last month, the NLRB issued a number of significant decisions touching on a broad range of labor law issues including, among others, social media postings, backpay awards, requests for information, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a collective bargaining agreement.
December 20, 2012 Briefing NLRB Reverses Longstanding Practice and Rules that a “Dues-Checkoff” Provision Survives a Contract’s Expiration
On December 12, the National Labor Relations Board ruled 3-1 that a labor contract provision authorizing an employer to deduct union dues from an employee’s paycheck (known as a “dues-checkoff”) continues in force after the labor contract containing the dues-checkoff provision expires.
December 20, 2012 Briefing EEOC Approves Strategic Enforcement Plan
This week, the U.S. Equal Employment Opportunity Commission, by a 3-1 vote, approved a Strategic Enforcement Plan establishing the agency’s national enforcement priorities for fiscal years 2013-2016 and improving integration of enforcement responsibilities between field offices.
December 12, 2012 Briefing Michigan Enacts Right-to-Work Laws
On December 11, 2012, Michigan became the 24th state to enact “right-to-work” legislation. Right-to-work legislation prohibits “compulsory unionism” by declaring invalid so-called “union security” or “closed shop” clauses in collective bargaining agreements.
December 5, 2012 Newsletter Labor News
Select events and news from the world of organized labor for November 2012
November 27, 2012 Briefing U.S. Supreme Court Holds That Arbitrators Decide the Validity of Noncompetition Clauses Under Valid Arbitration Agreements
The U.S. Supreme Court has once again dealt a decisive blow to a state court’s effort to resist a valid arbitration agreement.
November 7, 2012 Newsletter Labor News
Select events and news from the world of organized labor for October 2012
November 2, 2012 Briefing Virginia Supreme Court Holds That Individuals Can Face Wrongful Discharge Claims
On November 1, the Virginia Supreme Court held that Virginia law provides a claim of wrongful discharge directly against individuals, such as supervisors or managers, who participate in the firing of an employee, even if they are not the employee’s actual employer.
November 1, 2012 Briefing NLRB Advice Memo Allows At-Will Employment Provisions
The National Labor Relations Board’s Office of the General Counsel issued two Advice Memoranda on October 31, evaluating two at-will provisions in employee handbooks and concluding in each case that employees could not reasonably construe the provisions to restrict protected activity.
October 12, 2012 Briefing California Legislative Update
In September 2012, California Governor Jerry Brown signed into law several bills that will impact all employers with California employees. Employers should review these new laws and adjust their policies and practices as needed to ensure compliance by January 1, 2013, when many of the new laws become effective.
October 9, 2012 Briefing Sixth Circuit Holds that Severance Pay is Not Subject to FICA Taxes
A few weeks ago, the Sixth Circuit affirmed the Western District Court of Michigan’s holding in U.S. v. Quality Stores Inc., 424 B.R. 237 (W.D. Mich. 2010), that severance payments made to employees pursuant to an involuntary reduction in force were not “wages” for Federal Insurance Contribution Act tax purposes.
October 5, 2012 Newsletter Labor News
Select events and news from the world of organized labor for September 2012
October 4, 2012 Briefing NLRB Upholds Termination Based on Facebook Posting
In previous briefings, we have summarized various guidance memoranda issued by the National Labor Relations Board’s Office of the General Counsel concerning social media issues.
September 21, 2012 Briefing NLRB Issues First Decision on Social Media Policies
A three member panel for the National Labor Relations Board has issued its first decision concerning the validity of an employer’s social media policy.
September 11, 2012 Briefing Seventh Circuit Overturns Precedent and Holds Employers Must Use Job Reassignment as Reasonable Accommodation for Qualified Employee – absent undue hardship
On September 7, the U.S. Court of Appeals for the Seventh Circuit held that employers must reassign disabled employees to vacant positions for which they are qualified if the accommodation would ordinarily be reasonable and would not cause undue hardship, reversing its interpretation of the Americans with Disabilities Act. EEOC v. United Airlines, Inc., Case No. 10-cv-01699.
September 7, 2012 Newsletter Labor News
Select events and news from the world of organized labor for August 2012
August 16, 2012 Briefing Reminder of August 31 Deadline for Disclosures to Plan Participants
As a reminder to our clients and friends, the August 31 deadline for disclosing plan fees and investment-related information to participants in 401(k) and similar participant-directed plans (as required by DOL Regulation Sec. 2550.404a-5) is rapidly approaching.
August 14, 2012 Briefing Fifth Circuit Upholds Private Settlement of FLSA Claims
Recently, the U.S. Court of Appeals for the Fifth Circuit upheld a private settlement of Fair Labor Standards Act claims on the grounds that the settlement resolved a “bona fide dispute as to the number of hours worked,” rather than a waiver of plaintiffs’ substantive FLSA rights.
August 2, 2012 Briefing Illinois Amends Right to Privacy in the Workplace Act to Include Social Media
On Aug. 1, Illinois Gov. Pat Quinn (D) signed H.B. 3782, amending Section 10 of the Illinois Right to Privacy in the Workplace Act, (820 ILCS 55), into law.
July 17, 2012 Briefing National Labor Relations Board May Review At-Will Employment Statements in Handbooks
The National Labor Relations Board’s Regional Office in Phoenix, Ariz., recently filed a complaint against a national hotel chain, alleging that the at-will provision in the chain’s handbook, which stated that the provision could only be changed through a written agreement between an employee and certain executives, was overbroad and violated the National Labor Relations Act.
June 2012 Newsletter Labor News
Select events and news from the world of organized labor for June 2012
June 21, 2012 Briefing Supreme Court Holds First Amendment Bars SEIU from Requiring Objecting Nonmembers to Pay Special Fee to Finance Political Activities
The Supreme Court held that the SEIU violated the First Amendment when it required objecting nonmembers to pay a special fee for the purposes of financing the union’s political and ideological activities.
June 18, 2012 Briefing Supreme Court Rules Pharmaceutical Sales Representatives Exempt as Outside Salesmen Under the FLSA
The Supreme Court ruled 5-4 that pharmaceutical sales representatives, whose primary duty is to obtain nonbinding commitments from physicians to prescribe their employer’s prescription drugs, qualify as outside salesmen for purposes of the Fair Labor Standards Act’s outside sales exemption.
June 5, 2012 Newsletter Labor News
Select events and news from the world of organized labor for May 2012
June 1, 2012 Briefing National Labor Relations Board General Counsel Issues Third Report on Employer Social Media Policies
On May 30, 2012, the National Labor Relations Board Acting General Counsel, Lafe Solomon, issued a report on the lawfulness of employer policies governing social media (Memorandum OM 12-59).
June 1, 2012 Briefing Sixth Circuit Says the ADA Requires “But For” Causation
On May 25, the U.S. Court of Appeals for the Sixth Circuit held that the Americans with Disabilities Act requires plaintiffs to prove their disabilities were a “but for” cause of any adverse employment action. Lewis v. Humboldt Acquisition Corp., Inc., Case No. 09-6381.
May 16, 2012 Briefing Seventh Circuit Rules That Travel Before or After Unpaid Activities is Unpaid Under the FLSA
On May 8, 2012, the U.S. Court of Appeals for the Seventh Circuit held that steelworkers employed by the United States Steel Corporation were not entitled to compensation for time spent in putting on or taking off their work clothes or for time spent walking between their locker room and work stations under the Fair Labor Standards Act. Clifton Sandifer et al. v. U.S. Steel Corp., __ F.3d __, 2012 WL 1592543 (7th Cir. May 8, 2012).
May 15, 2012 Briefing District Court Invalidates NLRB Election Rules Changes Due to Lack of Participating Quorum
On May 14, 2012, the U.S. District Court for the District of Columbia ruled that the National Labor Relations Board’s institution of changes to rules governing procedures to be followed in union representation cases was invalid because at the time the changes were passed, the Board lacked participation by a requisite three-member quorum. Chamber of Commerce v. NLRB, D.D.C., No. 11-cv-2262, 5/14/12.
May 14, 2012 Briefing Action Required by Plan Fiduciaries
As most plan administrators are by now well aware, the U.S. Department of Labor issued new final regulations in February 2012 that require certain plan service providers to provide specific disclosures to “responsible plan fiduciaries” by July 1, 2012 and thereafter (the “408b-2 Rules”).
May 5, 2012 Newsletter Labor News
Select events and news from the world of organized labor for April 2012
May 2, 2012 Briefing California Supreme Court Rules No Attorneys’ Fees for Prevailing Party in Rest Break Cases
On April 30, 2012, the California Supreme Court unanimously held that a party that prevails on a claim involving an employer’s alleged failure to provide employee rest periods under California Labor Code Section 226.7 cannot recover attorneys’ fees. Kirby v. Immoos Fire Prot. Inc., Cal., No. S185827.
April 27, 2012 Briefing NLRB General Counsel Issues Guidance Memorandum on Representation Rule Changes
On April 26, National Labor Relations Board Acting General Counsel Lafe Solomon issued a guidance memo outlining in detail how Regional offices will implement new representation case procedures that take effect on Monday, April 30.
April 26, 2012 Briefing EEOC Releases Enforcement Guidance on Employers’ Use of Criminal Records
On April 25, the Equal Employment Opportunity Commission released enforcement guidance in order to clarify and update the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment.
April 25, 2012 Briefing EEOC Says Title VII Protects Transgender Workers
On April 23, the Equal Employment Opportunity Commission released a decision stating that for purposes of Title VII, sex discrimination encompasses discrimination against transgender individuals, who are individuals who self-identify as a different gender from their biological sex at birth.
April 25, 2012 Briefing DLSE (Again) Revises Its Previously Revised California Wage Theft Prevention Act Template & FAQs
On Thursday, April 12, 2012, the California Division of Labor Standards Enforcement once again revised and posted its template “Notice to Employee” and Frequently Asked Questions regarding the Wage Theft Prevention Act.
April 17, 2012 Briefing NLRB Posting Requirement on Hold Pending Appeal
Yesterday, we advised you that the U.S. District Court for the District of South Carolina held that the National Labor Relations Board lacked the authority to require employers to post notices in the workplace informing employees of their rights under the National Labor Relations Act.
April 16, 2012 Briefing U.S. District Court in South Carolina Strikes Down the NLRB’s Notice Posting Rule
On April 13, the U.S. District Court for the District of South Carolina held that the National Labor Relations Board lacked the authority to require employers to post notices in the workplace informing employees of their rights under the National Labor Relations Act.
April 12, 2012 Briefing Maryland Passes Legislation Banning Employers from Asking for Social Media Passwords
On April 9, Maryland legislators approved a bill banning employers from asking current or prospective employees for their passwords to social media sites.
April 12, 2012 Briefing California Supreme Court Provides Guidance to Employers on the Meaning of “Provide”
In its long-awaited decision in Brinker Restaurant Corp. v. Super. Ct. (SC S16635 04/12/12), the California Supreme Court, in a unanimous opinion, at last provided guidance to employers on how to “provide” meal and rest periods to California employees.
April 5, 2012 Briefing President Signs the Jumpstart Our Business Startups Act
Today the President signed into law the Jumpstart Our Business Startups Act (JOBS Act), H.R. 3606.
April 5, 2012 Newsletter Labor News
Select events and news from the world of organized labor for March 2012
April 2, 2012 Briefing EEOC Issues Final Rules Regarding ADEA Defenses
On March 29, 2012, the Equal Employment Opportunity Commission announced that it has issued a final rule amending its current Age Discrimination in Employment Act regulations.
March 15, 2012 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
March 5, 2012 Briefing OSHA Announces Major Restructuring of Whistleblower Protection Program
On March 1, 2012, the U.S. Occupational Safety and Health Administration announced a major restructuring of its Office of the Whistleblower Protection Program.
March 5, 2012 Newsletter Labor News
Select events and news from the world of organized labor for February 2012
March 2, 2012 Briefing Court Rules Employer’s Attendance Policy Seeking Medical Conditions for Absences Violates the ADA
A federal district court in California recently ruled that an employer’s attendance policy that required employees to disclose the nature of their medical conditions in order for healthrelated absences to be excused violated the Americans with Disabilities Act.
March 2, 2012 Briefing Court Rules on NLRB’s Notice Posting Regulation
Today, the court for the District of Columbia upheld the authority of the National Labor Relations Board to require employers to notify employees through a workplace posting of their rights under the National Labor Relations Act.
February 14, 2012 Briefing California Extends “Forced Labor” Disclosure to Retailers and Manufacturers Outside of the State
On September 30, 2010, the Supply Chains Act was signed into law aiming to ensure California consumers are provided with information regarding corporate efforts to eradicate slavery and human trafficking from supply chains.
February 3, 2012 Newsletter Labor News
Select events and news from the world of organized labor for January 2012
January 27, 2012 Briefing NLRB Acting General Counsel Issues Second Report on Social Media
On January 24, the Acting General Counsel of the National Labor Relations Board, Lafe E. Solomon, issued a second report, Memorandum OM 12-31, which updates the Acting General Counsel’s earlier August 2011 report on social media issues in the workplace.
January 23, 2012 Briefing New Jersey Enacts Trade Secrets Law
On January 9, 2012, Governor Chris Christie signed into law the New Jersey Trade Secrets Act. The Act, modeled on the Uniform Trade Secrets Act, codifies many of New Jersey’s current common law rules governing trade secrets.
January 13, 2012 Briefing Supreme Court Reaffirms Congress’s Strong Federal Policy Favoring Arbitration
The Supreme Court has demonstrated once again that it is serious about enforcing arbitration agreements. In CompuCredit Corp. v. Greenwood, 10-948, the Court held that pre-dispute agreements to arbitrate claims under the Credit Repair Organizations Act (CROA) are valid and enforceable.
January 10, 2012 Briefing NLRB Says Arbitration Agreements Waiving Employees’ Right to File Class Action Claims Violate the National Labor Relations Act
Last week, the National Labor Relations Board ruled that arbitration agreements prohibiting employees from filing class action claims violate the National Labor Relations Act.
January 5, 2012 Newsletter Labor News
Select events and news from the world of organized labor for December 2011
December 22, 2011 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
December 13, 2011 Briefing Distinguishing Applicability of AT&T Mobility v. Concepcion, Southern District of New York Holds that Employees Cannot Waive Their Right to Collective Action under FLSA
In a recent decision, Judge Robert Sweet of the Southern District of New York held that employees cannot waive their right to bring federal wage and hour claims on a collective basis. Raniere v. Citigroup Inc., 2011 WL 5881926 (S.D.N.Y. Nov. 22, 2011).
December 12, 2011 Briefing DOL Proposes Rule to Increase Government Contractors’ Hiring of Disabled Employees
On December 9, the Department of Labor proposed a rule designed to encourage government contractors to hire more disabled employees.
December 6, 2011 Briefing Illinois Supreme Court Creates New Standard for Enforcing Employee Noncompetition Agreements
On December 1, a unanimous Illinois Supreme Court ruled that reviewing courts evaluating the enforceability of an employee noncompetition agreement should examine all of the facts of the individual case and weigh each fact and circumstance of the case equally.
December 5. 2011 Newsletter Labor News
Select events and news from the world of organized labor for November 2011
Winter 2011 Article ERISA’s Outer Limits—The Admissibility of Extrinsic Evidence in Denied Claims for Plan Benefits
November 29, 2011 Briefing Texas Senate Bill 321: Employees Now Permitted to Store Firearms and Ammunition on Employers’ Property
Texas Governor Rick Perry recently signed into law Texas Senate Bill 321, codifying an employee’s right to transport and store firearms and ammunition on her employer’s property.
November 18, 2011 Briefing EEOC Passes Draft Final Rule on Age Discrimination Defense
On November 16, the Equal Employment Opportunity Commission passed a draft final rule that limits employer defenses in age discrimination cases. 
November 4, 2011 Newsletter Labor News
Select events and news from the world of organized labor for October 2011
November 3, 2011 Briefing California Employment Law Legislative Update
In October 2011, California Governor Jerry Brown approved 22 new employment laws which will impact employers with employees in California.
October 25, 2011 Briefing Second Circuit Joins Five Other Circuits in Ruling Company Stock Investments in 401(k) Plans Are Presumptively Prudent
On October 19, 2011, the Second Circuit Court of Appeals became the latest Circuit Court to adopt the “presumption of prudence” test for retirement plans holding company stock as an investment option.
October 14, 2011 Briefing Supreme Court To Decide Several Cases Affecting Labor & Employment in 2011-2012 Term
In the 2011-2012 term, the United States Supreme Court will consider a number of cases that may impact employers and employees.
October 7, 2011 Newsletter Labor News
Select events and news from the world of organized labor for September 2011
September 27, 2011 Briefing More States Join in Mandating Use of E-Verify for Certain Employers
Following the Supreme Court’s ruling in Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011), in which the Court upheld provisions in the Legal Arizona Workers Act that require electronic verification of employment eligibility through an E-Verify system, many states are adopting laws requiring employers to use E-Verify.
September 23, 2011 Briefing DOL to Coordinate Enforcement on Independent Contractor Misclassification Issues with IRS and State Labor Agencies
The Department of Labor (DOL) has signed a memorandum of understanding with the Internal Revenue Service (IRS) to coordinate efforts to address employee misclassification.
September 6, 2011 Newsletter Labor News
Select events and news from the world of organized labor for August 2011
Autumn 2011 Article Lost and Found: The Abandoned Plan Rule
August 31, 2011 Briefing NLRB Restores Bars to Challenges to Union’s Representative Status in Voluntary Recognition and Successorship Contexts
The National Labor Relations Board issued two 3-1 decisions, finalized August 26, addressing the protections that federal labor law affords new collective bargaining relationships between unions and employers.
August 31, 2011 Briefing DOL Issues Final Regulations Requiring Successor Government Contractors to Offer Predecessor’s Employees Jobs
This week, the U.S. Department of Labor issued final regulations implementing President Barack Obama’s Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts
August 25, 2011 Briefing NLRB Issues Rule Requiring Employers to Post Notification of Employees Right Under the NLRA
The National Labor Relations Board has issued a “Final Rule”, effective November 14, 2011, that requires employers to notify employees of their rights under the National Labor Relations Act.
August 23, 2011 Briefing NLRB Acting General Counsel Issues Report on Recent Decisions Involving Social Media Usage
On August 18, 2011, the Acting General Counsel of the National Labor Relations Board issued a report summarizing recent case developments arising in the context of social media.
August 10, 2011 Briefing OFCCP Ramps Up Compensation Discrimination Enforcement
Speaking at the Industry Liaison Group’s 29th annual national conference, officials from the Labor Department’s Office of Federal Contract Compliance Programs and Solicitor’s Office laid out an aggressive agenda for pursuing compensation discrimination claims against federal contractors.
August 4, 2011 Newsletter Labor News
Select events and news from the world of organized labor for July 2011
July 29, 2011 Briefing NLRB Division of Advice Finds No Protection for Some Employees Complaints Posted on Social Media Sites
The National Labor Relations Board’s Division of Advice concluded in three recent memoranda to NLRB regional offices that in certain circumstances, employees posting complaints about their employment on social media sites may not be engaged in concerted, protected activity, even if the complaints are job-related.
June - July 2011 Newsletter eDiscovery Advantage, Volume 1, Issue 2
Winston & Strawn eDiscovery Advantage, a bi-monthly newsletter containing overviews of significant eDiscovery cases and developments.
July 6, 2011 Briefing IRS Increases Mileage Rates for Remainder of 2011
Employers may need to adjust their mileage reimbursements to employees. The Internal Revenue Service (IRS) has announced an increase in the optional standard mileage rates for the final six months of 2011.
July 7, 2011 Newsletter Labor News
Select events and news from the world of organized labor for June 2011
July 2011 Article Department of Labor Threatens to Triple Overtime Misclassification Damages for Employers
June 24, 2011 Briefing Supreme Court Rejects Higher Standard of Causation for Railroad Workers Suing Under the Federal Employers’ Liability Act
Firm Authors: Heather S. Lehman
On June 23, the Supreme Court ruled (5-4) that a railroad employee seeking to recover for a work-related injury under the Federal Employers’ Liability Act need only demonstrate that the railroad’s negligence played “any part” in the injury, thus rejecting the railroad’s view that proximate cause is required. CSX Transportation, Inc. v. McBride, No. 10-235.
June 22, 2011 Briefing DOL’s Office of Labor–Management Standards Proposes Rule to Expand Reporting of Persuader Agreements
The Department of Labor’s Office of Labor-Management Standards published a notice of rulemaking on June 21, 2011 that would revise the interpretation of “advice” to expand the requirements for reporting persuader agreements between employers and labor relations consultants.
June 22, 2011 Briefing NLRB Proposes Amendments to Election Rules
On June 21, 2011, the National Labor Relations Board, Member Hayes dissenting, proposed reforms of its procedures regarding representation elections.
June 21, 2011 Briefing U.S. Supreme Court Reverses Order Certifying Class of 1.5 Million Wal-Mart Employees
Yesterday, the U.S. Supreme Court reversed the Ninth Circuit’s decision affirming certification of a class action comprising some 1.5 million current and former female Wal-Mart employees seeking injunctive relief and backpay.
June 21, 2011 Briefing Supreme Court Rejects Petition Clause Claims of Public Employee Who Alleged Retaliation
On June 20, the Supreme Court ruled (8-1) that a government employer’s allegedly retaliatory actions against an employee do not violate the First Amendment’s Petition Clause unless the employee’s petition relates to a matter of public, rather than private, concern.
June 20, 2011 Briefing NLRB Invites Amicus Briefs on Class Action Arbitration Agreements
On June 16, 2011, the National Labor Relations Board invited interested amici to file briefs addressing whether a company violated Section 8(a)(1) of the National Labor Relations Act by requiring its employees, as a condition of employment, to sign a mutual arbitration agreement in which the employee agrees to submit all employment disputes to individual arbitration and provides that the arbitrator will have no authority to consolidate claims or fashion a proceeding as a class or collective action. 
June 17, 2011 Briefing Ninth Circuit Holds That Unlicensed Accountants May Be Overtime-Exempt
On June 15, 2011, the Ninth Circuit held that a class of 2,000 unlicensed junior accountants was not categorically ineligible, as a matter of law, to fall under the professional or administrative exemptions from mandatory overtime, reversing the lower court’s holding.
June 6, 2011 Briefing Supreme Court Rules Partially Prevailing Defendant May Recover Limited Fees For Frivolous Claims
Resolving a split among circuit courts, a unanimous Supreme Court ruled that a court may grant reasonable attorney’s fees to a defendant in certain civil rights cases involving both frivolous and nonfrivolous claims, but only for fees the defendant would not have incurred but for the frivolous claims. Fox v. Vice, __ U.S. __, No. 10-114 (June 6, 2011).
June 3, 2011 Newsletter Labor News
Select events and news from the world of organized labor for May 2011
Summer 2011 Article Rule 23 Skidoo
May 27, 2011 Briefing U.S. Supreme Court Upholds Arizona’s Employment- Related Immigration Law
Firm Authors: Linda T. Coberly
Before the recent headlines about Arizona’s new and comprehensive immigration law known as SB 1070, litigation was already underway about an earlier Arizona immigration statute—a statute that punishes employers for knowingly employing undocumented workers.
May 18, 2011 Briefing Supreme Court Rules in Favor of Plan Sponsor in SPD Dispute, but With a Warning
On May 16, 2011 the U.S. Supreme Court abruptly reversed course in its interpretation of the remedies available to unhappy employee benefit plan participants who sue ERISA plan fiduciaries.
May 4, 2011 Briefing OFCCP Proposes Amending Affirmative Action and Nondiscrimination Regulations For Veteran Hiring and Recruitment Under VEVRAA
On April 26, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a notice of proposed rulemaking that would amend its regulations concerning contractor affirmative action and nondiscrimination obligations toward protected veterans under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).
May 3, 2011 Newsletter Labor News
Select events and news from the world of organized labor for April 2011
April 20, 2011 Briefing Department of Labor Substantially Curtails Use of the Fluctuating Workweek Method for Calculating Overtime
The Department of Labor issued regulatory amendments on April 5, 2011, that make it substantially riskier for employers to use the fluctuating workweek method to calculate overtime.
April 8, 2011 Briefing International Arbitration and Related Proceedings in Switzerland
Firm Authors: Ricardo E. Ugarte
Switzerland, a neutral and stable country situated in the heart of Europe, is frequently chosen by parties to cross-border transactions as the place of international arbitration for disputes arising from such transactions.
Spring 2011 Article ERISA’s Better Mousetrap
March 29, 2011 Briefing EEOC Issues Final ADAAA Regulations
On March 24, 2011, the Equal Employment Opportunity Commission issued final regulations that interpret the Americans with Disabilities Act Amendments Act.
March 23, 2011 Briefing Supreme Court Rules FLSA Anti-Retaliation Provision Covers Oral Complaints
Resolving a lower court conflict regarding the scope of the anti-retaliation provision of the Fair Labor Standards Act (FLSA), the Supreme Court ruled that an employee’s oral complaints were sufficient to trigger the FLSA’s protections.
March 3, 2011 Briefing Supreme Court Reinstates USERRA Discrimination Claim in “Cat’s Paw” Case
A unanimous Supreme Court held that an Army Reservist, who was fired from his civilian job, has a viable discrimination claim under the Uniformed Services Employment and Reemployment Rights Act based on evidence that two biased supervisors contributed to the termination decision, even though an unbiased manager ultimately made the decision. Staub v. Proctor Hospital, __U.S.__, No. 09- 400 (March 1, 2011).
March 3, 2011 Newsletter Labor News
Select events from the world of organized labor for February 2011
February 22, 2011 Article Winston & Strawn Comments to DOL on Nursing Break Requirements
February 21, 2011 Briefing Ninth Circuit Rules Pharmaceutical Sales Representatives are Exempt from Overtime Under Outside Sales Exemption
In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit found that pharmaceutical sales representatives cannot recover overtime pay under the Fair Labor Standards Act because they fall within the FLSA’s outside sales exemption.
February 16, 2011 Briefing California Court of Appeal Rules That Employers May Access Employee E-Mail on Company Computer, Including E-Mail to an Employee’s Personal Attorney
A California Court of Appeal has recently held that e-mails a California employee sent to her personal attorney on a company-issued computer were not “confidential” communications and thus were not protected by the attorney-client privilege.
February 16, 2011 Briefing New York Wage Theft Prevention Act
As one of his last acts in office, New York Governor David Patterson signed the New York Wage Theft Prevention Act into law, effective April 9, 2011.
February 8, 2011 Briefing 2010 State Legislative Development Update
Firm Authors: Joseph J. Torres
On February 2, 2011, the U.S. Department of Labor released a report summarizing notable state labor and employment legislation enacted in 2010.
February 7, 2011 Newsletter Labor News
Select events from the world of organized labor for January 2011
February 1, 2011 Briefing California Wage & Hour Update
The California Supreme Court has, not surprisingly, granted review of Hernandez v. Chipotle, 189 Cal. App. 4th 751 (2010). In the Chipotle case, the appellate court denied certification of meal and rest period claims.
January 2011 Article What Is the Story With the Meal Period Law and These Crazy Class Actions?
January 26, 2011 Briefing HB 0016 Introduced to Create an “Illinois Covenants Not To Compete Act”
On January 12, 2011, Representative Jil Tracy introduced HB 0016 to the Illinois General Assembly to create the Illinois Covenants Not To Compete Act.
January 24, 2011 Briefing Supreme Court Rules Terminated Fiancé May Pursue Title VII Retaliation Claim
Continuing its trend of endorsing a broad construction of anti-retaliation provisions, the United States Supreme Court ruled on January 24 in Thompson v. North Am. Stainless LP that an employee who contended he was terminated because his co-worker fiancée filed a sex discrimination charge could pursue a Title VII retaliation claim.
January 21, 2011 Briefing Seventh Circuit Rules FLSA Collective Action Does Not Bar Rule 23 Class Certification
Resolving conflicting district court authority, this week, the Seventh Circuit held that there is no categorical rule against certifying a Rule 23 state law class action in a proceeding that also includes a collective action brought under the Fair Labor Standards Act.
January 20, 2011 Newsletter Greater China Law Update January 2011
Winston & Strawn's Greater China Law Update is a publication covering relevant legal, financial, and economic topics that affect the Chinese and Hong Kong marketplaces.
January 7, 2011 Newsletter Labor News
Select events from the world of organized labor for December 2010
December 7, 2010 Briefing Georgia’s New Business-Friendly Non-Compete Law
Firm Authors: Eric M.D. Zion
Historically, Georgia has been extremely hostile to employer-employee non-compete covenants by applying “strict scrutiny” to their terms.
December 3, 2010 Newsletter Labor News
Select events from the world of organized labor for November 2010
November 12, 2010 Briefing SEC Proposes Whistleblower Program
On November 3rd, the Securities and Exchange Commission published proposed Regulation 21F, establishing a program designed to reward individuals who provide the SEC with information leading to successful enforcement actions.
November 11, 2010 Briefing EEOC Issues Final GINA Regulations
On November 8, 2010, the Equal Employment Opportunity Commission issued final regulations that interpret Title II of the Genetic Information Nondiscrimination Act.
November 8, 2010 Newsletter Labor News
Select events from the world of organized labor for October 2010
Winter 2010 Article Obamacare’s Claim Review Revolution
October 8, 2010 Newsletter Labor News
Select events from the world of organized labor for September 2010
October 7, 2010 Briefing Qualifying, Unionized Workers In Certain Industries Now Exempted From California’s Meal Period Requirements
On September 30, 2010, Governor Schwarzenegger signed a bill that creates new exemptions to the meal period requirements of California Labor Code Section 512 for unionized workers in certain industries.
Fall 2010 Article Avoiding Liability for Off-the-Clock Work in the Brave New World of the Blackberry
September 8, 2010 Newsletter Labor News
Select events from the world of organized labor for August 2010
September 2010 Article California’s Canary in the Coal Mine: Public Pension Underfunding
August 16, 2010 Briefing Illinois Employment Law Legislative Update
Last week, Illinois Governor Pat Quinn signed into Illinois law an act that prohibits employers from running credit checks on job applicants.
August 6, 2010 Briefing Illinois Law Increases Penalties for Violations of Wage Payment Act
On July 30, 2010, Illinois Governor Pat Quinn signed into law a bill that increases criminal penalties for employers who illegally withhold wages and expands procedural mechanisms for mployees to pursue unpaid wages.
July 28, 2010 Article 'ObamaCare' And The ABCs Of 'Grandfathered' Plans
July 21, 2010 Briefing Seventh Circuit Determines That Retaliatory Discharge Cases In Federal Court Are Subject To More Demanding Illinois Law Framework Instead Of More Lenient, McDonnell Douglas Standard
In Gacek v. American Airlines, Inc., No. 09-3131 (July 15, 2010), the U.S. Court of Appeals for the Seventh Circuit addressed the standard for retaliatory discharge cases under Illinois law when litigated in federal courts, providing further support for employers on an important question of law.
July 19, 2010 Briefing Supreme Court to Hear Several Cases Affecting Labor & Employment
The Supreme Court has accepted seven labor- and employment-related cases to be heard in the Court’s next term, which begins in October 2010. These cases touch on a wide range of labor and employment issues, and the Court’s rulings could have significant impacts on employers.
July 8, 2010 Briefing Second Circuit Defers to DOL Amicus Brief in Ruling That Certain Pharmaceutical Sales Reps Are Not Exempt Under the FLSA
On July 6, 2010, the United States Court of Appeals for the Second Circuit held that Pharmaceutical Sales Representatives of Novartis Pharmaceuticals Corporation were not exempt from the Fair Labor Standards Act or state laws as either “outside sales” or “administrative” employees.
July 8, 2010 Newsletter Labor News
Select events from the world of organized labor for June 2010
June 25, 2010 Briefing Department of Labor Issues Administrator’s Interpretation Expanding Who Can Stand “In Loco Parentis” Under FMLA
The Department of Labor (“DOL”) has issued an Administrator’s Interpretation that extends FMLA leave rights to any employee who has assumed responsibility for the parental care of a child, clarifying that the phrase “in loco parentis” includes non-traditional families.
June 25, 2010 Briefing Supreme Court Rules That Court, Not Arbitrator, Determines When Collective Bargaining Agreement Was Ratified
The U.S. Supreme Court held in a 7-2 decision that a dispute concerning the ratification date of a collective bargaining agreement (“CBA”) was for a district court, not an arbitrator, to decide.
June 23, 2010 Briefing Court Sides With Arbitrator’s Rights to Determine the Enforceability of Arbitration Agreements
This week, in a narrow 5–4 ruling, the Supreme Court continued its trend in favor of pro-arbitration rights in Rent-A-Center West v. Jackson. The ruling gives businesses the option to have mandatory arbitration enforceability disputes settled by arbitration, while leaving the door open for district court review of enforceability under certain circumstances.
June 18, 2010 Briefing DOL Administrator Issues Interpretation on “Clothes” Under § 203(o) of the FLSA
On June 16, 2010, the Department of Labor (DOL) issued its second wage and hour guidance document in the form of an “Administrator’s Interpretation.”
June 18, 2010 Briefing Supreme Court Rules Two-Member NLRB Lacked Authority to Decide Cases
In a 5-4 decision, the Supreme Court ruled yesterday that the National Labor Relations Board does not have authority to issue decisions while it has only two members.
June 8, 2010 Newsletter Labor News
Select events from the world of organized labor for May 2010
Summer 2010 Article Avoiding Liability for Off-the-Clock Work in the Brave New World of the Blackberry
Summer 2010 Article ERISA's Hotel California
Summer 2010 Article Supreme Court to Hear Several Cases Affecting Labor & Employment
Firm Authors: Derek G. Barella
May 25, 2010 Briefing Supreme Court Rules for Plaintiffs in Two Employment-Related Cases
On May 24, 2010, the Supreme Court issued decisions for plaintiffs in two separate cases, one under Title VII and the other under ERISA. These rulings will impact both employers and administrators of benefit plans.
May 12, 2010 Briefing New Rules for Group Health Plans Providing Coverage to Children Under Age 26
The Internal Revenue Service, the Department of Labor, and the Department of Health & Human Services each published Interim Final Rules on May 10 concerning the obligation of all group health plans under the Patient Protection and the Affordable Care Act to provide dependent coverage for children who have not yet attained age 26.
May 6, 2010 Newsletter Labor News
Select events from the world of organized labor for April 2010
April 29, 2010 Briefing Supreme Court Holds “Class Arbitration” May Not Be Imposed Absent Explicit Agreement
Class actions tend to increase the breadth and potential exposure of litigation against corporate defendants, which creates uncertainty in the legal environment.
April 28, 2010 Briefing Pension Committee and Rimkus Consulting: Differing Approaches to Determining Spoliation
Two prominent federal judges in the field of e-discovery have recently issued opinions setting forth differing analytical frameworks for deciding whether to impose sanctions for the spoliation of electronic evidence.
April 20, 2010 Briefing President Obama Signs Extension of Jobless Benefits
On April 15, 2010, President Obama signed into law H.R. 4851, the Continuing Extension Act of 2010, which temporarily extends certain unemployment and health care benefits.
April 7, 2010 Briefing Section 4207 of the Patient Protection and Affordable Care Act of 2010
The Patient Protection and Affordable Care Act of 2010 amends Section 7 of the Fair Labor Standards Act by adding the requirement that employers provide “reasonable break time for nursing mothers.”
April 6, 2010 Newsletter Labor News
Select events from the world of organized labor for March 2010
April 5, 2010 Briefing The ABCs of Health Care Reform
President Obama signed the Patient Protection and Affordable Care Act into law on March 23, 2010.
Spring 2010 Article The Evolution of Construction Union Greenmail: Legal and Political Developments, Adverse Consequences, and Combat Tips
Firm Authors: Charles S. Birenbaum
Spring 2010 Article The Magic Words
March 26, 2010 Briefing DOL Reverses Position on Mortgage Loan Officers, Creates New Type of Guidance
The U.S. Department of Labor yesterday began a new practice of issuing interpretive guidance through “Administrator’s Interpretations,” which will set forth generally applicable interpretations of laws within the Department’s jurisdiction and will not be bound by any particular set of facts.
March 24, 2010 Briefing New HIRE Act: Fund-Related Tax Provisions
On March 18, 2010, President Obama signed into law the Hiring Incentives to Restore Employment Act, which contains tax breaks for employers who hire new workers.
March 18, 2010 Briefing President Obama Signs $17.6 Billion Job-Creation Bill
President Obama has signed into law a $17.6 billion job-creation bill that contains tax breaks for employers who hire new workers.
March 8, 2010 Article What Hertz v. Friend Means to Employers
March 2, 2010 Newsletter LABOR NEWS
Select events from the world of organized labor for February 2010
February 26, 2010 Briefing U.S. Supreme Court Defines Company's Principal Place of Business As Its Nerve Center for Purposes of Removal
The U.S. Supreme Court's February 23, 2010 decision in Hertz v. Friend sends a clear message that our country's highest Court set out to resolve an inconsistency among federal courts that has been very costlly to employers on several levels, for too many years.
February 19, 2010 Briefing EEOC Issues Proposed Rule Clarifying RFOA Defense Under ADEA
The Equal Employment Opportunity Commission has released a proposed rule which, if adopted, would clarify the term “reasonable factors other than age” as used in the Age Discrimination in Employment Act.
February 5, 2010 Newsletter LABOR NEWS
Select events from the world of organized labor for January 2010.
January 5, 2010 Newsletter LABOR NEWS
Select events from the world of organized labor for December 2009
December 23, 2009 Briefing COBRA Premium Subsidy Extended
President Obama recently signed into law an extension of the government subsidized COBRA premium reduction program established earlier this year by the American Recovery and Reinvestment Act of 2009.
December 21, 2009 Briefing Misclassification of Employees as Independent Contractors Draws Heightened Government Enforcement
Highlighting a broad national trend toward stricter enforcement of employee misclassification, the Illinois Department of Labor on December 10 announced that it had imposed a $328,500 civil penalty against a Chicago-area contractor, finding that the contractor has misclassified 18 of its employees as independent contractors.
December 10, 2009 Briefing Supreme Court Issues Two Unanimous Decisions Affecting Labor & Employment
In Union Pac. R.R. Co. v. Bhd. of Locomotive Engineers, No. 08-604 (December 8, 2009), the Court unanimously held that a union’s failure to present evidence of efforts to reach a settlement through “conferencing” did not preclude the National Railroad Adjustment Board from exercising jurisdiction over the union’s claim.
December 8, 2009 Article Supreme Court to Clarify Rules for Multiplying Attorneys' Fees
December 2, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for November 2009
Winter 2009 Article District of Columbia Court of Appeals Reverses National Labor Relations Board and Finds Delivery Drivers Are Independent Contractors
Firm Authors: Jeffrey S. Bosley
November 5, 2009 Briefing October 2009 FMLA Amendments Regarding Military Leave
On October 28, 2009 President Obama signed the National Defense Authorization Act for Fiscal Year 2010, which expands Family and Medical Leave Act coverage for family members of military servicepersons.
November 3, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for October 2009
November 3, 2009 Briefing National Mediation Board Proposes Changes to Representation Election Rules
The National Mediation Board has proposed significant changes to representation election rules under the Railway Labor Act, which governs labor relations in the airline and railway industries.
October 19, 2009 Briefing Reminder – Many Companies Need to Amend for 162(m) by Year End
Many companies will need to amend their employment agreements, equity plans and awards, and other incentive plans and agreements by December 31, 2009, to preserve the deductibility of performance-based awards and amounts under Code Section 162(m) [the $1 million limit on public companies’ ability to deduct compensation payments to their named executive officers] in light of Rev. Rul. 2008-13.
October 2009 Article United States Supreme Court Enforces Collective Bargaining Agreement Requiring Arbitration of Employees' ADEA Claims
October 6, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for September 2009
September 24, 2009 Briefing A Step-by-Step Action Plan For Conducting Executive Compensation Risk Assessments
The most important year-end 2009 task for Companies, Boards of Directors, and Compensation Committees may be to begin to establish a process for assessing the risk of the Company’s executive and employee compensation programs.
September 24, 2009 Briefing Joint Policy Committee Issues Advice Regarding Union Demands Over Payments on Unauthorized Uploads to Web Sites
Recently, the Screen Actors Guild and the American Federation of Television and Radio Artists have been demanding that advertising agencies remit payments to performers and to pension and health funds for videos that have been uploaded to video sharing Web sites, such as You Tube, without the advertising agency or producer's permission.
September 8, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for August 2009
September 4, 2009 Briefing Illinois Employment Law Legislative Update
Illinois Governor Patrick Quinn recently signed three statutory amendments into law, each aimed at expanding the rights of workers in Illinois.
September 1, 2009 Article Regulatory Update: New Form 5500, Schedule C Reporting Requirements for 2009
Firm Authors: Linda Lemel Hoseman
Autumn 2009 Article ERISA: Life After the Stock Market Shock
August 2009 Article Must Athlete Endorsers Answer to SAG?
August 4, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for July 2009
August 2009 Article Second and Ninth Circuits Address Balance Between Union Speech Rights and Employer Property Rights
Firm Authors: Jeffrey S. Bosley
July 21, 2009 Briefing EEOC Issues Technical Assistance on “Understanding Waivers of Discrimination Claims in Employee Severance Agreements”
Last week, the Equal Employment Opportunity Commission issued, on its website, a technical assistance “Q&A” document to aid both employers and employees in navigating the complex rules on waivers of discrimination claims that employees are often required to sign as part of a severance agreement.
July 8, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for June 2009
July 2009 Article Identifying, Avoiding and Remedying Employee Theft
July 2009 Article California Layoff Basics—Two Perspectives
Firm Authors: Anna Segobia Masters
June 29, 2009 Briefing Supreme Court Rules Race-Based Actions to Remedy Employer’s Exam with Disparate Impact Violates Title VII
The Supreme Court ruled today that a city’s decision to discard results from promotion qualification exams after most minorities failed to qualify violated Title VII of the Civil Rights Act of 1964.
June 2009 Article Judging a Hong Kong Employer’s Right to Terminate
June 2009 Article Regulatory Update: COBRA Continuation Health Coverage Under the American Recovery and Reinvestment Act
Firm Authors: Linda Lemel Hoseman
June 22, 2009 Briefing Supreme Court Rules “Motivating Factor” Standard Not Allowed Under ADEA
Last week, the United States Supreme Court ruled (5 to 4) that employees bringing disparate-treatment claims pursuant to the Age Discrimination in Employment Act must prove that age was the “but-for” cause of the challenged adverse action, rather than simply a “motivating factor”.
June 4, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for May 2009
May 19, 2009 Briefing Illinois Appellate Court Finds Forced Holidays Did Not Change Exempt Status Under State Wage Law
An Illinois appellate court recently ruled that a telecommunications company that cut the working time and pay of salaried employees through furlough days during holiday weeks did not forfeit the exemption for salaried professionals under the Illinois Minimum Wage Law.
May 19, 2009 Briefing Supreme Court Upholds Mandatory Arbitration of Discrimination Claims
In a decision that could have a broad impact on business and organized labor, the United States Supreme Court recently held that a collective bargaining agreement can require the arbitration of workplace discrimination claims arising under the Age Discrimination in Employment Act.
May 2009 Article Bright Ideas: Underwriters Laboratories Inc. and Winston & Strawn LLP
Firm Authors: Columbus R. Gangemi Jr.
May 8, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for April 2009
April 30, 2009 Briefing Impact of Swine Flu in the Workplace
Now that the World Health Organization has raised the swine flu (also called the 2009 H1N1 flu) pandemic alert to a Level 5 (out of 6), employers may need to take precautions to safeguard their workers’ health and to avoid possible liability issues.
April 28, 2009 Briefing Illinois Supreme Court Expands Strict Liability Standard for Workplace Sexual Harassment Committed by Supervisors
Illinois employers are strictly liable for sexual harassment committed by any supervisor, even if the supervisor does not directly supervise the employee alleging harassment, according to a 4-2 ruling by the Illinois Supreme Court.
April 22, 2009 Briefing Company Subject to Writer's Union Received Objection Regarding User-Generated Content
The Writers Guild of America (WGA) has objected to a television network's request for story ideas from mothers for its new sitcom, claiming that it violates the network's contract with the guild. ABC created a new sitcom that was based on an online video series that featured brief vignettes about funny, stressed-out moms, which were inspired by stories submitted by viewers via an online forum.
April 16, 2009 Briefing Illinois Legislators Propose Significant Changes to Trade Secrets and Restrictive Covenants Laws
Illinois state legislators recently introduced two bills proposing changes that, if enacted, would significantly impact trade secret and non-competition law in Illinois.
April 9, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for March 2009
April 7, 2009 Briefing More COBRA Subsidy Information
On March 31, 2009, the Internal Revenue Service released its Notice 2009-27, in the form of a series of questions and answers that provide additional guidance regarding the COBRA premium reduction.
March 23, 2009 Briefing Illinois Law Restricting Participation in Federal E-Verify Program Held Invalid
Last week, the U.S. District Court for the Central District of Illinois held that Section 12(a) of the Illinois Right to Privacy in the Workplace Act violates the supremacy clause of the United States Constitution and is thus invalid. See United States v. Illinois, No. 07-3261, (C.D. Ill. March 12, 2009).
March 19, 2009 Briefing First Circuit Upholds NLRB’s Authority to Issue Two-Member Decisions and Affirms Ruling That Confidentiality Provision in Employment Contract Violated Federal Labor Law
In Northeastern Land Servs. Ltd. d/b/a NLS Group v. NLRB, No. 08-1878 (1st Cir., March 13, 2009), the First Circuit held in a case of first impression that the NLRB’s “delegation of its institutional power to a panel that ultimately consisted of a two-member quorum because of a vacancy was lawful under the plain text of [S]ection 3(b)” of the National Labor Relations Act.
March 11, 2009 Briefing Employee Free Choice Act Introduced in Congress
The Employee Free Choice Act was introduced yesterday in both the House and Senate, days after President Obama renewed his pledge to sign the legislation. The EFCA would amend the National Labor Relations Act to allow unions to bypass secret ballot elections and demand employer recognition through a process called "card check."
March 9, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for February 2009
February 20, 2009 Briefing New York and New Jersey “WARN” Update
The New York State Worker Adjustment and Retraining Notification Act became effective February 1, 2009. The New York State Department of Labor also issued an Emergency/Proposed Rule, which took effect on February 1, 2009.
February 4, 2009 Newsletter LABOR NEWS
Selected news from the world of organized labor for January 2009
February 2, 2009 Briefing President Obama Signs Executive Orders Impacting Government Contractors
Last Friday, President Obama signed three executive orders governing federal contractors' obligations to and interactions with their employees.
January 30, 2009 Briefing Lilly Ledbetter Fair Pay Act Signed into Law
President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law yesterday. This Act marks the first piece of legislation signed by President Obama.
January 28, 2009 Briefing Supreme Court Holds Title VII’s Retaliation Clause Covers Worker’s Replies to Employer’s Investigation Inquiry
This week, the United States Supreme Court unanimously ruled that an employee fired within a few months of disclosing a supervisor’s alleged sexual harassment in response to her employer’s questions may pursue a retaliation claim under Title VII of the 1964 Civil Rights Act, even though she never filed a harassment charge or initiated the internal investigation. (Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn., U.S., No. 06-1595, 1/26/09).
January 21, 2009 Briefing Legislative Update Concerning New Paycheck Fairness Measures
The U.S. House of Representatives recently approved two pay equity bills, the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. These measures are expected to pass through the Senate and to be signed into law by President Obama in the near future.
January 2009 Article More Targets, No Silver Bullets: 2008 Supreme Court Cases Expand Employment Law Risk for Employers
Firm Authors: Jeffrey S. Bosley
January 7, 2009 Briefing Hong Kong and Chinese Employment Law Update
Winston & Strawn’s Labor and Employment Relations Practice Group is pleased to announce the formation of an Asian subgroup. This briefing highlights some of the similarities and differences between Hong Kong and China employment law, including written employment contracts, lay-offs, termination of employment, and severance payments.
January 6, 2009 Newsletter LABOR NEWS
Select events from the world of organized labor for December 2008
December 17, 2008 Briefing Federal Court Holds; SAG Must Arbitrate P&W Disputes
The Joint Policy Committee of the AAAA-ANA seems to have won the final battle against the Screen Actors Guild and its Pension and Health Plans in their ongoing attempt to unilaterally determine whether the percentage allocated between covered and non-covered services in a talent agreement is appropriate.
December 3, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for November 2008
December 2008 Article United States Supreme Court Invalidates California Statute Prohibiting Use of State Funds for Organizing Related Activities
Firm Authors: Jeffrey S. Bosley
November 25, 2008 Briefing What Employers Need to Know About the Worker Adjustment and Retraining Notification Act (WARN)
To remain competitive in the current economic climate, many companies are choosing to streamline operations, including by strategically eliminating certain positions and/or operations. In the unfortunate event of a reduction-in-force, employers should be mindful of the notice requirements imposed by the federal Worker Adjustment and Retraining Notification Act (WARN Act).
November 17, 2008 Briefing Department of Labor 2008 Final FMLA Regulations Alert
On November 14, 2008, the Department of Labor released its long-awaited final revised regulations concerning the Family Medical Leave Act. The new regulations represent the first significant DOL guidance interpreting the Family Medical Leave Act in over thirteen years. The new regulations will take effect on January 17, 2009.
November 17, 2008 Briefing Federal Government Agencies Adopt a Final “E-Verify” Rule
Consistent with their efforts to heighten regulation of federal contractors, federal government agencies adopted a final “E-Verify” rule this past Friday. As of January 15, 2009, federal contractors and subcontractors will be required to enroll in and use the E-Verify system administered by the Department of Homeland Security and the U.S. Citizenship and Immigration services to confirm that employees are authorized to work in the United States.
November 10, 2008 Briefing What Employers Need to Know About the Employee Free Choice Act of 2007
With the upcoming Presidential and Congressional changes, employers will likely face a new law, the Employee Free Choice Act. This new law may result in a resurgence of union organizing across all industries, as the law makes it easier for unions to organize and increases the risk of financial penalties for employers attempting to defeat organizing drives.
November 3, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for October 2008
October 17, 2008 Briefing Strategies for Fiduciary Best Practices After LaRue and Glenn
The U.S. Supreme Court handed down two landmark decisions this year affecting retirement plan fiduciary governance on a broadscale: Metropolitan Life Ins. Co. v. Glenn and LaRue v. DeWolff, Boberg & Associates, Inc. Practitioners have heralded these decisions as supporting plan participants' rights to bring successful actions against retirement plan fiduciaries. However, by reading between the lines, these cases can provide strategies to protect employers and fiduciaries, and to facilitate their proper exercise of fiduciary duties.
October 13, 2008 Briefing Office of Federal Contract Compliance Program Issues String of Directives
The Office of Federal Contract Compliance Programs has recently issued a string of Directives addressing issues including the Agency’s new “quality control” program for contractor audits, the Form I-9 and the Agency’s procedures for inspecting the Form I-9 while conducting compliance evaluations, the use of the new EEO-1 race and job categories in complying with OFCCP obligations, and a contractor’s obligations with respect to the accessibility of online applications.
October 7, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for September 2008
October 3, 2008 Newsletter Trade Secret, Confidential Information, and Employee Retention Update
Winston & Strawn's Trade Secret, Confidential Information, and Employee Retention Update covers topics of interest to the firm's clients in the areas of employee restrictive covenants, including non-competition, non-disclosure and confidentiality agreements, and the protection of trade secrets
September 22, 2008 Briefing ADA Amendment Act of 2008 (“ADAAA”) Alert
Both houses of Congress recently passed the ADA Amendments Act of 2008 (“ADAAA”). President Bush is expected to sign the bill, which is scheduled to take effect on January 1, 2009. The new law overturns several U.S. Supreme Court decisions and seeks to “reinstate[e] a broad scope of protection” under the ADA. ADAAA § 2(b)(1). While the ADAAA maintains the ADA’s three-pronged definition of disability, it incorporates several new rules of construction, which serve to broaden the protective scope of the ADA.
September 19, 2008 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, healthcare and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
September 3, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for August 2008
September 2, 2008 Briefing California Supreme Court Rules that Judicial Review of Arbitration Awards in California Arbitration Act May Be Expanded By Contract
This briefing addresses a recent decision by the California Supreme Court which held that the grounds for vacating an arbitration award under the California Arbitration Act may be contractually expanded by the parties to an arbitration agreement.  Cable Connection, Inc. v. DIRECTV, Inc., No. S147767 (Cal. Aug. 25, 2008).
September 2, 2008 Article NLRB Provides Long-Awaited Guidance Concerning Enforceability of Labor Agreements Between Project Developers and Construction Unions
Firm Authors: Jeffrey S. Bosley
August 12, 2008 Briefing California Court Rejects Narrow Restraint Exception to Non-Compete Agreements
The California Supreme Court recently rejected a “narrow restraint” exception to the prohibition on covenants not to compete set forth in California Business and Professions Code Section 16600. Edwards v. Arthur Andersen LLP, No. BC294853 (Cal. Aug. 7, 2008). The “narrow-restraint” exception had previously been applied by some California federal courts to enforce non-compete agreements limited to specific clients or competitors.
August 12, 2008 Briefing New York Legislation Prohibits Non-Compete Agreements in Broadcasting Industry
New York Governor David Paterson signed broad legislation prohibiting non-compete agreements for broadcast industry employees. The Broadcast Employees Freedom to Work Act prohibits broadcast industry employers from barring any on-air or off-air employees, excluding management employees, from working in a given geographic area or for a specific period of time after the conclusion of their employment with a broadcasting industry employer.
August 5, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for July 2008
July 23, 2008 Briefing California Court of Appeal Rules Meal and Rest Break Claims Not Amenable to Class Treatment
In Brinker v. Superior Court the California Court of Appeal ruled that a trial court’s order certifying a class action involving meal and rest break and “off the clock” claims was erroneous because it “failed to properly consider the elements of plaintiffs’ claims in determining if they were susceptible to class treatment.”
July 10, 2008 Briefing Genetic Information Nondiscrimination Act of 2008 Alert
The Genetic Information Nondiscrimination Act (GINA) of 2008, new legislation aimed at preventing insurance providers, employers, employment agencies, and labor organizations from discriminating on the basis of an individual’s genetic information, was recently signed into law.
July 3, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for June 2008
July 2, 2008 Article La Cour de cassation fait prévaloir l’unicité de l’instance sur le double degré de juridiction
Firm Authors: Sébastien Ducamp
July 1, 2008 Newsletter Trade Secret, Confidential Information, and Employee Retention Update
Winston & Strawn's Trade Secret, Confidential Information, and Employee Retention Update covers topics of interest to the firm's clients in the areas of employee restrictive covenants, including non-competition, non-disclosure and confidentiality agreements, and the protection of trade secrets
June 27, 2008 Briefing Arbitrator Holds Against Screen Actors Guild, Taking Away The Ability to Sue in P&W Disputes
The ANA-AAAA Joint Policy Committee on Broadcast Talent Relations recently filed an arbitration request against the Screen Actors Guild with respect to the SAG Producers Pension and Health Funds' issuance of new Multi-Service Commercial Allocation Guidelines.
June 24, 2008 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
June 24, 2008 Briefing Supreme Court's Final Employment Decisions
As the 2007 Term draws to a close, the Supreme Court has issued several decisions in the employment arena, offering mixed news for employers.
June 12, 2008 Briefing Court Finds Waivers of ADEA Claims Invalid Due to Non-Compliance with the Older Workers Benefits Protections Act
Recently, a federal court in Minnesota refused to enforce federal age discrimination waivers signed as a result of a reduction in force, finding they did not comply with the requirements of the Older Workers Benefit Protection Act, 29 U.S.C. § 626, (Peterson, et al v. Seagate US, U.S. Dist. LEXIS 42179, (D. Minn., May 28, 2008)).
June 12, 2008 Briefing New York’s Highest Court Addresses Key Questions for Commissioned Sales Executives Under the Labor Law and When Commissions are Deemed to be Wages
This briefing provides a summary of Pachter v. Bernard Hodes Group, Inc., a recent decision of New York's highest court that addresses several key questions concerning commissioned sales executives.
June 5, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for May 2008
May 30, 2008 Briefing The Supreme Court Expands the Scope of Liability for Employers
This week the U.S. Supreme Court issued two employment decisions that expand the ability of employees to bring retaliation claims against employers. In CBOCS West, Inc. v. Humphries, the Court found that an employee of a private employer can bring a retaliation claim under § 1981, while in Gomez-Perez v. Potter, the Court held that the Age Discrimination in Employment Act allows a federal employee to bring a retaliation claim against a federal employer.
May 21, 2008 Article Severance Pay Can't Be Tied To Waiving FLSA Claims
Firm Authors: William G. Miossi
May 2008 Article 2007 Media Highlights
May 12, 2008 Briefing Court Enjoins Employer From Conditioning Severance Benefits on Waiver of FLSA Claims
Last week, a federal court issued a temporary restraining order prohibiting an employer from requiring employees to waive claims under the Fair Labor Standards Act as a condition of receiving severance benefits offered in connection with the employer's workforce reduction program.
May 5, 2008 Briefing New French Legislation — Whit Day: Worked or Not?
The additional “solidarity day” instituted in France since 2005 has just been reformed. A law passed on April 9, 2008 allows the employers to have greater flexibility in setting and implementing the terms of the solidarity day, taking into account their obligations.
May 5, 2008 Briefing Point sur la journée de solidarité
La journée de solidarité, instituée en France depuis 2005 vient de faire l'objet d'une réforme. Cette loi en date du 9 avril 2008 prend notamment en compte les obligations des employeurs et en tire les conséquences nécessaires en permettant une plus grande flexibilité dans la fixation des modalités d'exécution de la journée de solidarité.
May 2, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for April 2008
May 1, 2008 Article New Jersey Enacts Its Own More Draconian Version of the WARN Act
April 30 Briefing CDA Immunity Denied Where Content was Added
Bruce Tefft, a New York City Police Department employee, and the NYPD were sued by a counter-terrorism officer that claimed he was a victim of a hostile working environment. Tefft was employed by the NYPD to research and forward articles concerning terrorism to the anti-terrorism department of the NYPD.
April 11, 2008 Briefing New Jersey Senate Approves Paid Family Leave; Governor Expected to Sign
This week the New Jersey Senate gave final legislative approval to a measure (A. 873) that allows workers to take up to six weeks of paid leave to care for sick family members or for newborn or newly adopted children. New Jersey Governor Jon Corzine is expected to sign the measure, making New Jersey the third state to enact paid family leave rights, after California and Washington.
April 7, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for March 2008
April 3, 2008 Briefing Supreme Court Rules that Grounds for Vacating Arbitration Awards in Federal Arbitration Act Are Exclusive
Last week, the U.S. Supreme Court ruled that the grounds for vacating or modifying an arbitration award found in the Federal Arbitration Act are the exclusive grounds by which a court may vacate or modify an award under the Act, and may not be modified by agreement of the parties.  Hall St. Assocs. LLC v. Mattel Inc., U.S., No. 06-989.
April 2008 Article The Cost of Security: Wage and Hour Claims for Security Checks
Firm Authors: Joan B. Tucker Fife
March 27, 2008 Newsletter Trade Secret, Confidential Information, and Employee Retention Update
Winston & Strawn's Trade Secret, Confidential Information, and Employee Retention Update covers topics of interest to the firm's clients in the areas of employee restrictive covenants, including non-competition, non-disclosure and confidentiality agreements, and the protection of trade secrets.
March 20, 2008 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
March 2008 Article Supreme Court Addresses the Admissibility of 'Me Too' and Other Third-Party Evidence in Employment Discrimination Litigation
March 2008 Article The NLRB and California Supreme Court Provide Important Guidance Concerning Interplay Between Property and Speech Rights
Firm Authors: Jeffrey S. Bosley
March 11, 2008 Briefing Washington, D.C. Council Passes Accrued Sick and Safe Leave Act
The Washington, D.C. Council recently passed the Accrued Sick and Safe Leave Act, which provides paid leave to employees for their own and family members’ health needs. If approved by the mayor, as expected, Washington, D.C., will become the second U.S. city to require employers to provide their employees with paid sick and protective leave.
March 5, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for February 2008
March 2008 Article NLRB Rules Employers May Adopt Nondiscriminatory E-Mail Policies That Restrict Union-Related Communications
Firm Authors: Jeffrey S. Bosley
March 3, 2008 Briefing Supreme Court Adopts EEOC Standard Regarding Whether a Filing Constitutes a “Charge”
Last week, the U.S. Supreme Court ruled that any document filed with the Equal Employment Opportunity Commission that can reasonably be construed as a request for action to protect an employee's rights or otherwise settle a dispute with the employer constitutes a discrimination charge within the meaning of the Age Discrimination in Employment Act
February 27, 2008 Briefing Supreme Court Declines to Substantively Rule on Admissibility of "Me Too" Evidence in Employment Discrimination Cases
The U.S. Supreme Court issued its latest opinion on employment matters yesterday, invoking traditional evidentiary principles and declining to adopt a substantive standard for the admissibility of "me too" evidence offered by plaintiffs in employment discrimination actions. Sprint/United Mgmt. Co. v. Mendelsohn, U.S.
February 25, 2008 Briefing Questions & Réponses : Obligation d’utiliser la langue française dans les relations de travail
Passage obligé des curriculum vitae, la maîtrise de l’anglais s’est incorporée depuis longtemps aux exigences de la vie des affaires.  Mais de la connaissance de la langue à la généralisation de son usage dans les documents internes à l’entreprise, il y a un pas que le Code du travail ne franchit pas.
February 25, 2008 Briefing Questions & Answers: Obligation to Provide Employees With Documents Drafted in French Under French Labor Law
As highlighted in recent court decisions, the French Labor Code provides for an obligation to use the French language in the workplace, the scope and consequences of which are sometimes not perceived.
February 22, 2008 Article Supreme Court Holds that 401(k) Participants May Sue for Breach of Fiduciary Duty to Recover Losses in Individual Accounts
Firm Authors: Linda T. Coberly, Krista M. Enns, Steffen N. Johnson, Catherine W. Joyce, Michael S. Melbinger, Michael P. Roche, Gene C. Schaerr
February 22, 2008 Briefing Supreme Court Holds that 401(k) Participants May Sue for Breach of Fiduciary Duty to Recover Losses in Individual Accounts
In a closely watched ERISA case, the Supreme Court has clarified the right of employees to sue plan fiduciaries for mismanaging their individual 401(k) accounts.
February 14, 2007 Briefing FMLA Update
Last week, the Department of Labor submitted to Congress a draft of proposed changes to the Family and Medical Leave Act. The FMLA allows an employee to take up to 12 weeks unpaid leave due to a serious health condition that makes the employee unable to perform his job or to care for a sick family member or to care for a new child.
February 7, 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for January 2008
February 5, 2008 Briefing National Defense Authorization Act Amends FMLA
Last week, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008.  Among other things, the NDAA extends Family and Medical Leave Act protection to family members of wounded service members.
January 25, 2008 Briefing The California Labor Commissioner Cracks Down on Employers Who Fail To Maintain Employee Pay Records at the Place of Employment
In recent months, there has been increased activity by the California Division of Labor Standards Enforcement to crack down on employers who fail to comply with the requirements of California Labor Code section 226(a).
January 24, 2008 Briefing Supreme Court Outlook Update
The United States Supreme Court recently announced that it will consider three additional cases that may impact the employer-employee relationship.
January 15, 2008 Briefing How To Comply With San Francisco’s Health Care Security Ordinance
The U.S. Court of Appeals for the Ninth Circuit recently ruled that employers are now required to comply with San Francisco's Health Care Security Ordinance.
January 8, 2008 Briefing New Jersey Enacts Its Own More Draconian Version of the WARN Act
New Jersey has recently enacted the Millville Dallas Airmotive Plant Job Loss Act to supplement protections offered to employees by the federal Worker Adjustment and Retraining Notification Act. (The Act was named after an employer in New Jersey that closed a facility, which led to the loss of more than 200 jobs.)
January 7, 2008 Briefing NLRB Rules Employers May Adopt Non-Discriminatory E-Mail Policies That Restrict Non-Job Related Communications, Including Union Communications
The National Labor Relations Board, in a sharply divided 3-2 decision released December 21, 2007, held that employers may lawfully adopt policies concerning use of company-provided e-mail systems that effectively restrict the use of these systems for union solicitations.
January 7, 2008 Article Common Reasons for Defeating Class Certification
Firm Authors: Anna Segobia Masters
January 2008 Newsletter LABOR NEWS
Select events from the world of organized labor for December 2007.
December 19, 2007 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
December 6, 2007 Newsletter LABOR NEWS
Select events from the world of organized labor for November 2007.
December 2007 Article Ordering A La Carte: The Supreme Court should rule that in employment fights, too many cooks spoil a fair trial
November 29, 2007 Briefing Update on the U.S. ICE’s Amendment of Employment Regulations
On September 12, 2007, we sent you an alert concerning the U.S. Immigration and Customs Enforcement’s announcement of the implementation of a final rule relating to the unlawful hiring and continued employment of unauthorized aliens.
November 2007 Article De l'obligation d'user de la langue française dans les relations de travail
Firm Authors: Sébastien Ducamp
November 8, 2007 Briefing California Supreme Court Rules in Gattuso v. Harte-Hanks
The California Supreme Court has ruled that an employer may satisfy its reimbursement obligation under Labor Code Section 2802 by paying employees enhanced compensation in the form of increases in base salary or commission rates in lieu of employees’ actual costs incurred in performing their job duties. Gattuso v. Harte-Hanks Shoppers, Inc., Case No. S139555 (Nov. 5, 2007).
November 6, 2007 Newsletter LABOR NEWS
Select events from the world of organized labor for October 2007
November 2007 Article Overtime Lawsuits Revisited
Firm Authors: Joan B. Tucker Fife
November 2, 2007 Briefing Maryland Enacts Personal Information Protection Act
Following years of debate, the Maryland General Assembly recently enacted the Personal Information Protection Act. The Personal Information Protection Act takes effect on January 1, 2008 and will affect every Maryland business that maintains personal information of its customers.
October 31, 2007 Briefing How to Investigate Employee Activities Within the Company Under French Labor Law (Essentials of E-Discovery and E-Monitoring in France)
Companies with employees in France should pay attention to the recent evolution of French Labor law and, specifically, case law.
October 30, 2007 Article La Cour de cassation se prononce sur le statut social des directeurs de laboratoires d’analyses médicales
Firm Authors: Gilles Bigot
October 18, 2007 Briefing Maryland Law Provides New Cause of Action for Workplace
This month, a new Maryland law went into effect that could have a significant impact on Maryland employers and employers with employees in Maryland.
October 15, 2007 Briefing Military Spouse Leave
Last week, California Governor Arnold Schwarzenegger signed AB 392, to be effective immediately, requiring California employers with 25 or more employees to allow spouses of military members up to 10 days of unpaid leave while the military member is home on leave from deployment.
October 8, 2007 Newsletter LABOR NEWS
Select events from the world of organized labor for September 2007
October 4, 2007 Briefing NLRB Modifies Recognition and Contract Bar Doctrines to Provide 45-Day Period to Challenge Voluntary Recognition
In a significant decision this week, the National Labor Relations Board dramatically changed the legal landscape concerning voluntary recognition agreements.  Dana Corp., 351 NLRB No. 28 (September 29, 2007).
October 2, 2007 Briefing The Supreme Court Outlook for 2007-2008
This term the United States Supreme Court will consider a number of cases that may impact employers and employees. These cases are briefly summarized.
October 2, 2007 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
October 2007 Article Ninth Circuit Rejects Painters Union’s Attempt To Organize Employers Through Commonly Employed Language In Master Labor Agreements
Firm Authors: Charles S. Birenbaum
September 24, 2007 Briefing NLRB Voids Labor Agreement Between Owner and Building Trades
In a long-awaited decision, the National Labor Relations Board recently concluded that several construction industry unions violated Section 8(e) of the National Labor Relations Act by using a construction permitting process to coerce a project owner to enter into a project labor agreement.
September 2007 Newsletter Trade Secret, Confidential Information, and Employee Retention Quarterly Update
Winston &Strawn's Trade Secret,"Confidential Information, and Employee Retention Quarterly Update covers topics of interest to the firm's clients in the areas of employee restrictive covenants, including non-competition, non-disclosure and confidentiality agreements, and the protection of trade secrets.
September 12, 2007 Briefing U.S. Immigration and Customs Enforcement Amends Employment Regulations
U.S. Immigration and Customs Enforcement has announced amended regulations relating to the unlawful hiring and continued employment of unauthorized aliens that will go into effect on September 15, 2007.
September 5, 2007 Newsletter LABOR NEWS
Select events from the world of organized labor for August 2007
August 31, 2007 Briefing Amendments to Illinois Human Rights Act Provide Increased Access to Illinois Courts
On August 17, Illinois Governor Rod Blagojevich signed a bill giving individuals alleging violations of the Illinois Human Rights Act greater access to Illinois courts.
August 10, 2007 Briefing Seventh Circuit Rules that Denial of Overtime Can Constitute Adverse Employment Action
In a case of of first impression, the U.S. Court of Appeals for the Seventh Circuit recently held that a denial of overtime can constitute an adverse employment action sufficient to implicate Title VII of the 1964 Civil Rights Act.
August 6, 2007 Newsletter LABOR NEWS
Select events from the world of organized labor for July 2007.
July 13, 2007 Briefing EEOC Revises Age Discrimination Regulations
Earlier this week, the U.S. Equal Employment Opportunity Commission revised its age discrimination rules to allow employers to favor older workers over younger ones.
July 11, 2007 Briefing Fourth Circuit Reaffirms Prohibition on FMLA Waivers in Release Agreements
A panel for the U.S. Court of Appeals for the Fourth Circuit has reaffirmed that the plain language of Department of Labor regulations that prohibit employees from waiving their rights under the Family and Medical Leave Act bar both the prospective and retrospective waiver of all FMLA rights, including claims for past violations.
July 5, 2007 Newsletter LABOR NEWS
Select events and news from the world of organized labor for June 2007.
June 29, 2007 Briefing San Francisco Paid Sick Leave Ordinance Update
San Francisco’s Paid Sick Leave Ordinance went into effect on February 5, 2007 with a “grace period” until June 6, 2007 to allow employers to establish and implement accrual and record-keeping systems.
June 15, 2007 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
June 14, 2007 Briefing Oil Capital Sheet Metal Update
In a recent split decision, the NLRB changed its standard for determining backpay in "salting" cases. Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (2007). The NLRB will no longer apply to a union-organizer "salt" the presumption that he or she would have worked indefinitely, and would therefore be entitled to backpay from the date of discrimination until the employer makes an unconditional offer to hire.
June 8, 2007 Briefing Additional Remedies in First Contract Bargaining Cases
In a Memorandum (07-08) issued last week, National Labor Relations Board General Counsel Ronald Meisburg identified additional remedies to be considered when unfair labor practices occur during bargaining for an initial contract.
June 2007 Newsletter LABOR NEWS
Select events and news from the world of organized labor for May 2007
May 29, 2007 Briefing U.S. Supreme Court Limits Pay Discrimination Lawsuits
A divided U.S. Supreme Court ruled on May 29 that workers may not sue their employers for unequal pay because of discrimination that may have occurred years earlier. Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074 (May 29, 2007).
May 16, 2007 Briefing Ninth Circuit Decision Complicates Implementation of Mandatory Arbitration Agreements in the Workplace
On May 14, 2007, the Ninth Circuit issued its opinion in Davis v. O’Melveny & Myers, Case No. 04-56039, holding that O’Melveny’s arbitration agreement was unenforceable because it failed the two-part unconscionability test under California law.
May 2007 Article Unicité de l’instance prud'homale et effet extinctif immédiat de la demande écrite de désistement
Firm Authors: Sébastien Ducamp
May 2007 Newsletter LABOR NEWS
Select events and news from the world of organized labor for April 2007.
April 26, 2007 Briefing President’s Identity Theft Task Force Releases Strategic Plan
On April 23, 2007, the Department of Justice and the Federal Trade Commission released a strategic plan to combat identity theft that was produced by the President’s Identity Theft Task Force.
April 20, 2007 Briefing Decision by California Supreme Court Significantly Increases Liability for Meal and Rest Period Violations
On April 16, 2007, the California Supreme Court issued its opinion in Murphy v. Kenneth Cole Productions, Inc., unanimously holding that the “additional hour of pay” provided under California Labor Code Section 226.7 for alleged meal and rest period violations is a wage, not a penalty.
April 11, 2007 Briefing Parent Corporations May be Liable as a “Direct Participant” for Subsidiary Employees in Illinois
In a decision with potential ramifications for many Illinois businesses, the Illinois Supreme Court, creating new law, held that direct participant liability is a valid theory of recovery in Illinois, and that parent companies, therefore, are not necessarily immune from liability under the Workers’ Compensation Act. In so holding, the Court considered the scope of a parent company’s liability under Illinois law for a workplace accident that occurred at its subsidiary’s facility.
April 2007 Article Labor and Employment Law Practice - List of Articles
April 2007 Newsletter LABOR NEWS
Select events and news from the world of organized labor for March 2007
April 2007 Article Recent Developments in EU Employee Data Privacy Law
Firm Authors: Sébastien Ducamp
March 29, 2007 Briefing Supreme Court Makes It More Difficult for Private Whistleblowers to Sue Government Contractors for Fraud
In a substantial win for businesses, the U.S. Supreme Court issued a decision this week imposing strict requirements for lawsuits by private whistleblowers.
March 8, 2007 Briefing Focus on Major Trans-Border Employment Law Issues
A significant number of Winston & Strawn LLP’s U.S. clients have subsidiaries in one or several European Union Member-States. U.S. employers must take note that economic projects conceived in the United States may be subject to numerous E.U. and French laws governing employment matters.
March 7, 2007 Briefing New EEO-1 Requirements & Applicant Requirements
Two major changes took place in the past year that affect what records employers need to make and retain about their employees, as well as how to classify them.
March 2007 Article Compelled Privilege Waiver: Has the McNulty Memo Changed Anything?
February 22, 2007 Article NLRB Set to Rule on Employer Policies Governing Use of E-mail Systems
Firm Authors: Jeffrey S. Bosley
December 14, 2006 Briefing The McNulty Memorandum — A Missed Opportunity for Responsible Change in Corporate Enforcement Policy
On Tuesday, December 12, 2006, Deputy Attorney General Paul McNulty released revised Department of Justice guidelines regarding federal prosecution of business organizations. The revised policies, which are embodied in an internal Department of Justice memorandum, supercede and replace earlier guidelines issued in 2003 by then-Deputy Attorney General Larry Thompson.
December 11, 2006 Briefing Wage and Hour Division Finds That Financial Advisors Are Exempt From Overtime as Administrative Employees
The Administrator of the Department of Labor’s Wage and Hour Division recently released an opinion letter confirming that most stockbrokers and other financial advisors are exempt as administrative employees under the Fair Labor Standards Act, as long as they receive at least $455 per week in guaranteed compensation.
December 1, 2006 Briefing EU Employee Data Privacy Law
Recent privacy legislation in the European Union has posed specific challenges to U.S. employers who conduct business in Europe by regulating their ability to collect, retain, and transfer employee data within Europe and internationally.
November 17, 2006 Briefing San Francisco’s Paid Sick Leave Ordinance
On November 7, 2006, San Francisco voters passed local Proposition F, approving the nation’s first Paid Sick Leave Ordinance. Barring any adverse legal action, Proposition F will become law on February 5, 2007.
October 16, 2006 Briefing Ninth Circuit Clarifies Burdens of Proof in ADA Qualification Standard Cases
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit recently ruled that United Parcel Service violated the Americans with Disabilities Act by categorically excluding deaf workers from package-car driving positions.
October 5, 2006 Briefing The Supreme Court Outlook for 2006-2007
This term the United States Supreme Court will consider a number of cases that may impact employers and employees. These cases are briefly summarized in this briefing.
October 5, 2006 Briefing NLRB Clarifies Definition of Supervisor
The National Labor Relations Board recently released three highly anticipated decisions clarifying who is a supervisor under the National Labor Relations Act. The Board’s decisions have far-reaching implications in determining which employees may be included in a bargaining unit.
October 2006 Article The Promises and Pitfalls of Workplace Communications, Part 1
September 14, 2006 Briefing California to Raise Minimum Wage
On September 12, 2006, California Governor Schwarzenegger signed into law AB 1835, which will increase the current California minimum wage of $6.75 per hour to $7.50 per hour on January 1, 2007, and to $8.00 per hour on January 1, 2008. The last increase in the California minimum wage was in January 2002 (from $6.25 to the current $6.75).
September 11, 2006 Briefing D.C. Circuit Court of Appeals Holds Federal Government May Not Tax Compensation for Non-Physical Personal Injuries
A recent, controversial and surprising decision by the United States Court of Appeals for the District of Columbia Circuit held that it is unconstitutional for the federal government to tax compensation received by a plaintiff on account of a non-physical injury unrelated to lost wages or earnings.
August 18, 2006 Briefing Pension Protection Act of 2006 Brings New Risks and Liabilities for Multiemployer Plans and Contributing Employers
The long-anticipated Pension Protection Act of 2006, recently passed by Congress on August 3, changes the calculus and raises the stakes for employers, active and retired employees and the trustees of multiemployer pension plans.
August 2006 Article Overtime Lawsuits Remain Threat
Firm Authors: Joan B. Tucker Fife
July 25, 2006 Briefing District Court Strikes Down Maryland’s Fair Share Health Care Law as Preempted by ERISA
In a decision that may help ease the implementation or maintenanceof employee benefit plans that are uniform nationwide, a federal districtcourt for the District of Maryland struck down the Maryland Fair Share Health Care Fund Act as preempted by ERISA. Retail Indus. Leaders Assoc. v. Fielder, No. 06-316.
July 18, 2006 Briefing ERISA Section 4062(e) Liability
ERISA Section 4062 provides special rules that apply when an employer ceases operations at a facility in any location and, as a result of such cessation of operations, more than 20 percent of the total number of employees who are participants under a plan maintained and established by it are separated from employment.  This event—a Section 4062(e) event—is similar to an active participant reduction, a reportable event to the PBGC under ERISA Section 4043.
July 12, 2006 Briefing Seventh Circuit Clarifies the Standards for Proving Pretext Under Title VII
The U.S. Court of Appeals for the Seventh Circuit recently clarified the proper test for proving pretext under Title VII of the Civil Rights Act of 1964. In Forrester v. Rauland-Borg Corp., No. 05-4650 (7th Cir. 6/29/06), the Seventh Circuit explained that the court’s analysis of the “pretext” prong of the familiar McDonnell Douglas burden shifting test can also be thought of as the “true reason” portion of the test.
July 12, 2006 Briefing FEHC Issues Modified, Proposed Mandatory Harassment Training Regulations
On June 20, 2006, the California Fair Employment and Housing Commission issued modified, proposed regulations on Harassment Training and Education, interpreting Government Code section 12950.1 (formerly A.B. 1825), which requires all California employers with 50 or more employees to train their supervisors in harassment prevention.
July 12, 2006 Briefing NLRB Finds Mandatory Arbitration Policy in Violation of the NLRA
Mandatory arbitration policies for employees may violate the National Labor Relations Act, unless they specifically exempt NLRA disputes from coverage, according to a recent decision by the National Labor Relations Board. In U-Haul Co.of California and Machinist District Lodge 190, 347 NLRB No. 34 (2006), the NLRB found that U-Haul violated Section 8(a)(1) of the NLRA by maintaining a mandatory arbitration policy as a condition of employment in its non-unionized workforce.
June 20, 2006 Briefing The DOL Administrative Review Board Issues Its First Decisions Construing the Whistleblower Provisions of Sarbanes-Oxley
The Sarbanes-Oxley Act, enacted in 2002, permanently changed the landscape of reporting requirements for publicly traded companies. Although most of these changes addressed financial reporting and accountability, section 806—the whistleblower protection provision—expanded the liability of publicly traded companies and their agents and contractors for employment decisions.
June 20, 2006 Briefing IRS Reminds Businesses to Classify its Workers Correctly
On June 14th, the Internal Revenue Service issued a fact sheet reminding businesses to ensure they treat their workers properly for purposes of meeting various tax obligations. Most workers fall into one of two categories: independent contractors and common-law employees.
June 13, 2006 Briefing Department of Homeland Security to Issue Proposed Regulations for Employers’ Response to Social Security No-Match Letters
Employers often do not know how to proceed when a “no-match” letter arrives from the Social Security Administration saying that the name or social security listed on an employee’s W-2 form does not match the one contained in government databases.
June 5, 2006 Briefing Supreme Court Holds ERISA Fiduciary May Sue Beneficiary For Reimbursement Under “Equitable Relief” Provision
In a unanimous decision, the U.S. Supreme Court recently held that when an injured person receives benefits from an ERISA plan but then sues a third party over the same injuries and recovers a settlement or damages, the ERISA plan fiduciary can sue for reimbursement out of that settlement or award.
May 24, 2006 Briefing Class Action Lawsuits Filed for Sex and Age Discrimination on Promotional Offers
Last May, the California Angels conducted a Mother’s Day promotion whereby all females 18 years of age and older attending the baseball game at Angels Stadium received a free Angels tote bag.
May 2006 Article Not Just the Parent - ALJs Debate Whether SOX Covers Whistle-blowers at Nonpublic Subsidiaries
May 15, 2006 Briefing llinois Governor Expected to Sign Bill Expanding Availability of Punitive Damages in Wage Disputes
Under recent Illinois legislation, now heading to the desk of Governor Rod Blagojevich, workers denied their proper wages under the Illinois Minimum Wage Law will be eligible to collect punitive damages from their employers.
April 28, 2006 Briefing Seventh Circuit Holds Employee’s Intentional Infliction of Emotional Distress Claim Can Stand Independent of Illinois Human Right Act
A panel of the U.S. Court of Appeals for the Seventh Circuit recently ruled that the Illinois Human Rights Act did not preempt a terminated employee’s Illinois state-law claim of intentional infliction of emotional distress, where that claim was based on conduct independent of conduct used to support her Title VII sex discrimination claim.
April 24, 2006 Briefing California Supreme Court Holds that Vulgarity and Sex Talk in “Creative” Production of “Friends,” Which Were Not Directed at Plaintiff, Were Not Actionable Sexual Harassment
According to a recent decision byan unanimous California Supreme Court, plaintiff, Amaani Lyle, a female comedy writers' assistant on the production of the popular television show Friends, failed to show that the "writers' sexual antics and coarse sexual talk" was severe or pervasive enough to create a hostile work environment in violation of California state law.
April 18, 2006 Briefing Ninth Circuit Finds Dress and Grooming Standards Policy Did Not Violate Title VII's Prohibitions Against Gender Discrimination and “Sex Stereotyping”
The U.S. Court of Appeals for the Ninth Circuit accepted Jespersen v. Harrah’s Operating Co., for en banc (entire court) review “in order to reaffirm our Circuit law concerning appearance and grooming standards, and to clarify our evolving law of sex stereotyping claims.” (9th Cir. en banc 04/14/2006).
March 24, 2006 Briefing Illinois Supreme Court Rejects Heightened Standard for Enforcing Employee Arbitration Agreements
In a decision with significant ramifications for Illinois employers who have or are thinking of adopting mandatory alternative dispute resolution programs, the Illinois Supreme Court on March 23, 2006 held that the enforceability of such agreements is governed by ordinary state-law contract principles, as mandated by the Federal Arbitration Act.
March 13, 2006 Briefing Department of Labor Updates Form LM-10 Guidance
On March 7, the Department of Labor released additional guidance to clarify the Form LM-10 filing requirements set forth in the Labor-Management Reporting and Disclosure Act of 1959.
March 2, 2006 Briefing U.S. Supreme Court Rules that Title VII Employee Threshold Does Not Determine Jurisdiction
Last week, the United States Supreme Court resolved a significant issue regarding coverage under Title VII: whether the 15-employee threshold for determining whether an individualor entity is an “employer” covered by Title VII of the Civil Rights Actof 1964 is a substantive element of plaintiff’s claim for relief, or a jurisdictional issue.
January 12, 2006 Briefing Decision Issued on Implementing Sarbanes-Oxley Whistleblowing Procedures in France
France has recently adopted a decision aimed at resolving a conflict of laws facing companies with operations in France subject tothe Sarbanes-Oxley Act (the Act). This briefing explains the conflict that gave rise to this decision, its substantive scope, and the related labor law considerations.
January 10, 2006 Briefing Seventh Circuit Allows Employer’s Ban on Religious-based Employee Groups
A recent decision by the United StatesCourt of Appeals for the Seventh Circuit held that an employer may decline to provide special group status to “any group promoting or advocating a religious belief” as long as this policy applies to all religious groups.Moranski v. General Motors Corp., 7th Cir., No. 05-1803, 12/29/05.
January 9, 2006 Briefing California Jury Finds Wal-Mart Liable for $172 Million for Meal Break Violations
Failing to provide legally required meal time for employees might have Wal-Mart picking up a pricey lunch tab.Wal-Mart employees sued the retailer in California state court allegingthat, to save labor costs, Wal-Mart did not hire enough employees and forced them to work through their meal breaks. Wal-Mart contended that most employees agreed to waive their meal periods, and that it otherwise paid employees for missed breaks, in compliance with California law.
Winter 2005 Article Sarbanes-Oxley: A New Whistle Stop for Whistleblowers
Non-Firm Authors: Lesley A. Pate
Fall 2005 Article Employment Practices Liability Insurance: Does It Cover Invasion of Privacy and Identity Theft Claims?
Non-Firm Authors: Kristine L. Zeabart
March 2005 Article The Increasing Use of California's Unfair Competition Law in Wage & Hour Litigation and a Wide Variety of Other Employment Cases
April 2004 Article High Court Rules Employers Can Discriminate Against Younger Workers
March 2003 Article NLRB “Watch List”: Decisions and Issues That Could Receive Attention and More Pro-Employer Treatment From the New Board
Firm Authors: Derek G. Barella
2002 Article Playing Trade Secret Offense and Defense: Protecting Your Trade Secrets While Recruiting Your Industry's Best and Brightest
Firm Authors: Columbus R. Gangemi Jr.
Non-Firm Authors: Tracy A. O'Flaherty