Workforce Bulletin

By:  Ana S. Salper

With the recent surge in class action wage and hour lawsuits, hospitality employers have developed a heightened sensitivity to tip pooling arrangements, distributions of service charges to employees, and application of the “tip credit.” A case before the U.S. Supreme Court this month, Applebee’s International Inc. v. Gerald A. Fast et al., is likely to add further fuel to the fiery “tip credit” world,  as the high court will have to decide whether tipped employees should be paid minimum wage for nontipped tasks employees perform.

Under the Fair Labor ...

by Anna A. Cohen

On September 28, 2011, a National Labor Relations Board (“NLRB”) administrative law judge (ALJ) found that Knauz BMW lawfully terminated the employment of Robert Becker, a salesperson, after he posted pictures and comments on his Facebook page about two different workplace incidents -- an automobile accident and a dealership sales event.  The judge also found that several Employee Handbook policies, unrelated to social media postings, contained overly broad language.  Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (Sept. 28 ...

By:  Kara M. Maciel

On August 25, 2011, the National Labor Relations Board (“NLRB”) adopted a final rule to require all employers to post a notice of employee rights under the National Labor Relations Act (“NLRA”). The required posting provides information to employees about the right to organize a union, bargain collectively, and engage in protected concerted activity – as well as the right to refrain from such activity. Significantly, this posting requirement is required for all hospitality employers – large and small -- regardless of whether your operations are ...

by Steven M. Swirsky and Michael F. McGahan

On Thursday, August 18, 2011, the Acting General Counsel of the National Labor Relations Board ("NLRB" or "Board") issued a report on the outcome of 14 cases involving employees' use of social media or social media policies in general. This report follows a more expansive "Survey of Social Media Issues Before the NLRB" issued by the U.S. Chamber of Commerce on August 5, 2011, which addresses 129 cases involving social media reviewed by the NLRB at some level. Further, after these reports were published, an NLRB administrative law judge ("ALJ ...

 by Michael Kun

 Some were beginning to wonder whether it would ever happen.  After more than two years, the California Supreme Court has announced a hearing date in the much-awaited Brinker v. Superior Court case -- November 8, 2011.

Unless the Court takes a detour, California employers should finally know the answer to a question that has long driven California's billion dollar wage-hour class action industry -- must an employer "ensure" that employers take meal and rest periods, or are they only required to make them "available" to employees.

Should the Supreme Court rule that ...

By: Jill Barbarino

When defending a litigation filed by a current or former employee, it is now routine practice for the employer’s counsel to review the employee’s workplace e-mails and computer for information relevant to the employee’s claims or the employer’s defenses.  This, of course, is consistent with the principle that the employer’s e-mail and computer systems are the property of the employer and employees have no expectation of privacy with respect to electronic communications sent or received via their employer’s systems.  If, however, an employee has ...

By Allen B. Roberts and Stuart M. Gerson

Those concerned with managing or insuring risk are affected increasingly by the evolution of whistleblowing, especially as new laws and interpretations since 2009 have changed the stakes by redefining whistleblower protections and bounty award entitlements.

Virtually any risk management program written prior to the 2008 elections may need to be recalibrated to take account of new definitions introduced by whistleblower features of legislation nominally concerning healthcare and financial services, but in reality reaching much ...

On March 23, 2012, another requirement under the Patient Protection and Affordable Care Act (the “Act”)  will be effective-the requirement to provide group health plan participants and beneficiaries with a summary of benefits coverage that accurately describes the benefits and coverage available under the plan and a uniform glossary of terms (“SBC”).  These requirements were incorporated under the Internal Revenue Code and ERISA (in addition to existing summary plan description requirements).  Under currently proposed regulations, health insurance issuers will ...