Workforce Bulletin

 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 ...

By: James S. Frank and D. Martin Stanberry (Admission Pending)

On August 23, 2011, the National Labor Relations Board (“Board”) ruled that a hospital whose nurses are represented by a union does not have the authority to unilaterally implement an employee flu vaccination program because, in the Board’s view, ensuring patient safety is not a core purpose of the enterprise.  Virginia Mason Hospital, 357 N.L.R.B. No. 53 (August 23, 2011).  Specifically, the Board rejected the employer’s reliance on what is known as the “Peerless defense,” and held that the National Labor ...

by Susan Gross Sholinsky , Dean L. Silverberg, Steven M. Swirsky, and Jennifer A. Goldman

New York City employers take note: under the New York City Human Rights Law (“NYCHRL”), it is now considerably more difficult for employers to establish “undue hardship” in the context of denying an employee’s request for a reasonable accommodation due to his or her religious observance or practice. While previously silent on the issue, the NYCHRL now includes a definition of the term “undue hardship,” as follows: “an accommodation requiring significant expense or ...

By: Michael A. Kalish

The following does not depict an actual interview.  Rather, it is a fictitious illustration (at least for now).

Interviewer:    So tell me why you’re interviewing for the position we’ve advertised.

Interviewee:   That’s an easy one.  Because I’m unemployed and I need a job.

Interviewer:    What happened with your last job?

Interviewee:   I wasn’t very good, and they needed to reduce headcount, and I was an easy place to start.

Interviewer:    There appears to be gaps on your resume between all six of the jobs you’ve had.  Six months here, two years there.  What ...

by Susan Gross Sholinsky, Dean L. Silverberg, Steven M. Swirsky, and Jennifer A. Goldman

New York City employers take note: under the New York City Human Rights Law (“NYCHRL”), it is now considerably more difficult for employers to establish “undue hardship” in the context of denying an employee’s request for a reasonable accommodation due to his or her religious observance or practice. While previously silent on the issue, the NYCHRL now includes a definition of the term “undue hardship,” as follows: “an accommodation requiring significant expense or ...

By:  Kara M. Maciel and Mark M. Trapp

On August 23, 2011 the Washington D.C. area experienced a 5.9 magnitude earthquake. A week later, a “labor law earthquake” of far greater magnitude had its epicenter in a federal agency in D.C. In the coming weeks and months, its aftershocks will be felt by unprepared employers, particularly those operating hotels, restaurants, spas and clubs in the hospitality industry.

In an opinion that America’s largest private sector labor union called a“monumental victor[y] … for unions,” the National Labor Relations Board ...

By:  Robert S. Groban, Jr.

Many of our hospitality clients are revisiting immigration requirements to see if there are any advantages that they have overlooked. One overlooked advantage is the USCIS’s E-Verify system. Employers know that the IRCA requires them to satisfy the Form I-9 requirements.  Many have found this difficult to implement and have been the targets of worksite enforcement operations by U.S. Immigration and Customs Enforcement (“ICE”) that are costly to defend and often result in significant fines. Traditionally, many hospitality employers have looked at ...