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"Whistleblowing" to Media Not Protected by Sarbanes-Oxley

May 9, 2011 | Blog | By David Barmak

In a decision that likely surprised no one but the plaintiffs, on May 3, 2011, the United States Circuit Court of Appeals for the Ninth Circuit held that Boeing was within its right to fire two employees who complained to the media about practices they viewed as potential violations of the Sarbanes-Oxley Act (“SOX”).
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Firing of Teacher's Union Activist for Viewing Porn in Violation of School District's Computer Usage Policy Upheld in Face of First Amendment and Other Challenges

May 9, 2011 | Blog | By David Barmak

67 seconds of viewing porn . . . That’s all it took to get a high school biology teacher and former teacher’s union president, Robert Zellner, fired- 67 seconds of viewing porn. Why is this news?  Because Mr. Zellner sued, claiming that he was actually terminated because of his union activities and not because he viewed porn from his school-owned computer.
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New York Anti-Bullying Law Back in the Mix for 2011

February 16, 2011 | Blog | By David Barmak

Last year, New York nearly became the first state to pass a law protecting employees against workplace bullying. The New York State Senate passed the bill in May 2010 by a wide margin, but the following month, the New York Assembly Labor Committee voted to “hold” it in committee, effectively killing its chances at passage in 2010.
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EEOC Sues Claiming Severely Obese Employee was Disabled under the ADA

October 18, 2010 | Blog | By David Barmak

On September 30, 2010, the Equal Employment Opportunity Commission (the “EEOC”) filed a lawsuit against a non-profit social services agency, claiming that the agency had discriminated against an employee on the basis of her disability—severe obesity.
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EEOC Suit Against US Steel Serves Highlights Union's Complicity in Allegedly Unlawful Testing of Employees

October 11, 2010 | Blog | By David Barmak

As recently reported in Employment Law 360 (subscription required), the EEOC sued US Steel alleging that certain of its alcohol testing practices violate the Americans with Disabilities Act.
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DOL Expands FMLA Reach to Cover LGBT and Non-nuclear Families

June 24, 2010 | Blog | By David Barmak

In an Administrator’s Interpretation issued on June 22, 2010, The U.S. Department of Labor (DOL) has "clarified" the definition of “son or daughter” under the Family Medical Leave Act (FMLA) as it applies to an employee standing in loco parentis to a child. The result is to significantly expand the universe of caregivers entitled to FMLA leave.
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Supreme Court decides City of Ontario v Quon

June 18, 2010 | Blog | By David Barmak

See this interesting write-up of the Supreme Court's decision in the text message privacy case, City of Ontario v Quon.
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Answers to Employers' Frequently Asked Questions re Health Care Reform's Impact on Employee Benefits.

April 19, 2010 | Blog | By David Barmak

See this recent Mintz Levin advisory answering some "FAQs" on health care reform's impact on employee benefits.
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Health Care Reform Amendments to FLSA Require Break Time and Private Place for Nursing Mothers to Express Milk

April 15, 2010 | Blog | By David Barmak

Health care reform impacts employers in many significant ways. While the effects of reform on insurance coverage and other requirements have been widely publicized, much less well-understood are various amendments to the Fair Labor Standards Act (FLSA).
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2d Circuit Ruling Gives Employers Additional Incentive to Ensure Their Complaint Channels Remain Open and Are Effective in Fact

March 14, 2010 | Blog | By David Barmak

The Second Circuit Court of Appeals recently reversed an order of summary judgment for JetBlue Airways Corp. on a former employee’s sexual harassment claim in Gorzynski v. JetBlue Airways Corp.
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"High Road Contracting Policy" Could Change How Government Contractors Compensate Their Employees

February 11, 2010 | Blog | By David Barmak

According to an article posted on the DC Crawler website, the “Obama administration is considering a proposal that would heavily favor government contractors that implement policies designed by organized labor.”
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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:
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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