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Do the FedEx Cases Portend a Different Approach to Employee/Independent Contractor Analysis?

February 1, 2010 | Blog | By David Barmak

Here's a link to a short article I wrote for Employment Law 360 discussing the success FedEx has had in establishing that drivers for its FedEx Home subsidiary are independent contractors, not employees, including the D.C. Circuit's favorable decision which focused on the fact that the drivers have an "entrepreneurial interest" in their routes

Supreme Court to Hear Case re Employer's Access to Employee's Text Messages

December 16, 2009 | Blog | By David Barmak

On Monday, December 14, 2009, the United States Supreme Court announced that it will hear arguments in USA Mobility Wireless Inc. v. Quon, a case that may have a significant impact on employers’ rights to monitor employees’ electronic communications. The important facts of Quon may be summarized as follows:

The Other Duty to Accommodate: Employees' Religious Beliefs, Observances & Practices

November 24, 2009 | Blog | By David Barmak

Most employers are familiar with federal and state laws requiring them to reasonably accommodate an applicant or employee with a disability, unless the accommodation would result in an undue hardship.

2nd Circuit: Executive's Non-compete not Enforceable where Contract was Not Properly Signed

November 9, 2009 | Blog | By David Barmak

In an interesting case out of New York, the Second Circuit affirmed the District Court's refusal to enjoin an executive from working for his ex-employer's competitor where he had signed the contract in the wrong place an indicated an intention not to be bound by the Agreement. See Mintz Levin's Alert on the subject for more information on this case.

What's up with the Employee Free Choice Act?

November 4, 2009 | Blog | By David Barmak

What's up with the Employee Free Choice Act?  The short answer is… not much. Most recently, in September, Sen. Arlen Specter described his work on a revised version of the Employee Free Choice Act (EFCA).

NY DOL Mandates Use of its Form to Notify Employees of Terms and Conditions of Employment

November 4, 2009 | Blog | By David Barmak

Amendments to New York Labor Law §195 obligate New York employers to notify new employees, in writing and at the time of hire, about certain terms and conditions of employment. Amended §195 also requires employers to obtain from each new employee a written acknowledgment confirming that he or she received the specified information.

Sometimes, less really is more ... and more is just too darn much!

October 15, 2009 | Blog | By David Barmak

Workplace Prof blog posted an interesting commentary on a recent California case, Nazir v. United Airlines, Inc., No. A121651 (Cal. App. Ct. October 8, 2009), in which the appellate court overturned the trial court’s decision granting summary judgment to the employer in a routine employment discrimination case.

ADEA Plaintiffs Must Show that Age was a Determinative "But For" Reason for Adverse Employment Action, But For How Long?

October 14, 2009 | Blog | By David Barmak

A recent decision by the U.S. Court of Appeals for the Third Circuit illustrates how the Supreme Court’s opinion in Gross v. FBL Financial Services, Inc. serves to prevent previously-viable claims under the Age Discrimination in Employment Act (the “ADEA”) from reaching trial.

Massachusetts SJC, Applying NY Law, Requires CEO to Return $7 Million in Salary and Bonuses Paid to him while Harassing Female Employees

October 10, 2009 | Blog | By David Barmak

This alert talks about a recent decision by the Supreme Judicial Court of Massachusetts, which awarded Astra Zeneca about $7 million in salary and bonuses paid to its former CEO. The CEO had engaged in a long standing pattern of harassing female employees.

Personnel Polices and Social Networking Sites

October 6, 2009 | Blog | By David Barmak

See this recent Mintz Levin client Alert urging employers to consider the adoption of a policy addressing employees' use of social networking sites such as Facebook.

Is Congress About to Reverse Another Supreme Court Decision?

October 1, 2009 | Blog | By David Barmak

Both before and after the November 2008 Presidential and Congressional elections, legal pundits issued dire warnings that an Obama Presidency and a filibuster-proof Democratic Congress would result in a flurry of new, employee-friendly legislation.

Where is That Non-Compete Agreement that the Former Vice President Signed?

September 29, 2009 | Blog | By David Barmak

In a surprising number of cases, we’ve come across a situation where an employment agreement with original signatures, or some other important document, has gone missing. While a copy will sometimes suffice, a recent New York case highlights the importance of having an effective system for maintaining critical employment-related documents.

Labor Secretary Solis: DOL is Back in the Enforcement Business

September 21, 2009 | Blog | By David Barmak

From the time she was confirmed as Secretary of Labor, Hilda Solis has stressed that the Department of Labor (“DOL”) will reverse the trend set by the previous administration and focus on enforcing workplace laws and regulations.

Disagreeing with the 7th Circuit, the 9th Circuit Rules that an Employee Who Emailed Company Documents to a Personal Email Account Did Not Violate the Computer Fraud and Abuse Act

September 21, 2009 | Blog | By David Barmak

The Ninth Circuit’s opinion in LVRC Holdings LLC, v. Brekka et al. calls into question the utility of the Computer Fraud and Abuse Act (CFAA) for employers seeking to redress employee theft or misuse of company information.

Second Circuit rules that an Employer may be liable under the ADEA for the actions of an Independent Contractor Hiring on the Employer's Behalf

September 15, 2009 | Blog | By David Barmak

The recent decision of the United States Court of Appeals for the Second Circuit in Halpert v. Manhattan Apartments, Inc. illustrates yet another risk for employers who engage independent contractors to work for them and provides a reminder that an employer may be liable for the discriminatory conduct of independent contractors.

Employment Alert: H1N1 Flu Readiness: A Summary of Employment-Related Concerns

May 19, 2009 | Blog | By David Barmak

The H1N1 Flu or Swine Flu is a respiratory disease caused by type A influenza. While its symptoms are similar to symptoms of the seasonal flu (fever, cough, body aches, chills, fatigue, etc.), H1N1 flu is more problematic than seasonal flu because people have not developed natural antibodies to H1N1 and vaccines are not readily available.

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