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Selected articles concerning employment related issues noted by law firms

Selected articles concerning employment related issues noted by law firms
Source: The Lexology newsfeed
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New York - Arbitration agreements should identify administering institution as a result of New York appellate court ruling
Mayer Brown LLPA
New York state appellate court has ruled that a contract clause calling for arbitration "in accordance with the commercial rules of the American Arbitration Association" is insufficient to provide that the arbitration will be administered by the AAA.

Arkansas - Eighth Circuit rules on diversity jurisdiction for federal actions to compel arbitration
Edwards Angell Palmer & Dodge
A decision of the Eighth Circuit Court of Appeals, Northport Health Services of Arkansas, LLC v. Rutherford, No. 09-2433 (8th Cir. 2010), recently held that diversity of citizenship jurisdiction in the context of a motion to compel arbitration under § 4 of the Federal Arbitration Act (?FAA?) can be determined by looking at the citizenship of the parties named in the proceedings before the district court, plus any indispensible parties who must be joined.

New Jersey - New Jersey federal court finds that arbitration award was not in manifest disregard of the law
Edwards Angell Palmer & Dodge
laintiff moved to vacate an arbitration award issued in favor of defendant Stroehmann Bakers on the grounds that, among other things, the arbitrator's decision was in "manifest disregard of the law."

USCIS statistics show troubling adjudication disparities
Dinsmore & Shohl LLPU.S.
Citizenship and Immigration Services (USCIS) operates four Service Centers that adjudicate applications and petitions filed by employers and individuals.

9th Cir says no mandatory arbitration of CROA claims, splits w/ 3rd and 11th Cirs
Kahrl Wutscher LLP
he U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court's holding that a mandatory arbitration clause in a credit card agreement was void, holding that the federal Credit Repair Organization Act ("CROA"), 15 U.S.C. § 1679, et seq., prohibits provisions that purport to waive a consumer's right to sue in court for CROA violations.

Pregnant welder sues employer for discrimination
Roetzel & Andress
On August 10, 2010, the Sixth Circuit Court of Appeals issued its decision in Spees v. James Marine, Inc., which affirmed summary judgment in favor of the employer in part.

Georgia - Dramatic, employer-friendly changes to Georgia?s restrictive covenant law in the hands of Georgia voters
Alston & Bird LLP
On November 2, 2010, Georgia voters may make it easier for employers to enforce restrictive covenants.

Drug and alcohol testing policies
Avanti Law LLC
hat is your organization's stance on drug testing?

Uncorroborated testimony sufficient to get to jury trial
Greenberg Traurig LLP
A new decision from the U.S. Court of Appeals for the 7th Circuit provides a stark reminder to employers of the ease with which a former employee can get a lawsuit before a jury.

Florida - Florida FLSA lawsuits on the rise
Roetzel & Andress
Since 2004, there has been a 77% increase in the number of lawsuits related to wage and hour disputes.

California - No age discrimination where successful candidate had superior credentials, California court holds
Jackson Lewis LLP
A 56-year-old job applicant had no age discrimination claim under the California Fair Employment and Housing Act where he lacked superior credentials and the prospective employer presented consistent justifications for hiring a 40-year-old candidate, the California Court of Appeal has held.

Ohio - New Ohio law mandates leave for military families
Dinsmore & Shohl LLP
On July 2, 2010, Ohio's Military Family Leave Act ("OMFLA") went into effect.

Police officer's fitness-for-duty examination did not violate ADA or FMLA, Ninth Circuit rules
Jackson Lewis LLP
The City of Yakima, Washington did not violate the Americans with Disabilities Act by requiring a police officer to undergo a fitness-for-duty exam ("FFDE") after he repeatedly exhibited emotionally volatile behavior, a federal appeals court in San Francisco has held.

Privilege issues
Dorsey & Whitney LLP
A class action discrimination lawsuit was filed against our company.

Supervisor's statements may entitle employee to FMLA
Franczek Radelet PC
To establish a claim of interference with rights under the FMLA, an employee must ordinarily demonstrate that he or she was entitled to FMLA leave.

California - No private cause of action against employers for taking a dip in the tip pool
Hunton & Williams LLP
Section 351 of California's Labor Code prohibits employers from taking any gratuity patrons leave for their employees, and provides that such gratuity is "the sole property of the employee or employees to whom it was paid, given, or left for."

Missouri - "Officer-Shareholder" exclusion in crime policy bars coverage for embezzlement scheme
Wiley Rein LLP
A U.S. District Court in Missouri, applying Missouri law, has held that an exclusion in a crime policy, barring coverage for any claim relating to the wrongful acts of an ?Officer-Shareholder, whether acting alone or in collusion with others,? applied to a claim alleging that an employee assisted and independently profited from the insureds? former president?s embezzlement scheme.

Massachusetts - Changes to personnel records law require immediate action
Prince Lobel Glovsky & Tye LLP
The Massachusetts Personnel Records Act was amended earlier this month in two significant ways.

Executive temporary injunction against new employment may be needed to prevent ?likely? disclosure
McDermott Will & Emery
The U.S. Court of Appeals for the Third Circuit affirmed a preliminary injunction barring a senior bakery executive from beginning employment with a competitor, finding that the ?likely? disclosure of bakery?s trade secrets to the new employer was sufficient harm to support the injunction.

Proposed ITAR amendment regarding dual nationals and third-country nationals
Winston & Strawn LLP
The United States Department of State is proposing to amend the International Traffic in Arms Regulations ("ITAR") requirements regarding dual nationals and third-country nationals employed by recipients of controlled goods and technology.

Health sector targeted by employment law trends
Baird Holm LLP
As if the recent barrage of changes brought about by health care reform legislation wasn't enough, the health care industry is also the target of a number of changes in the area of employment law.

California - More difficult to challenge class allegations at pleading stage in wage hour cases
Seyfarth Shaw LLP
Many wage and hour claims in California are brought as class actions.

California - Prevailing defendant entitled to fee award unrelated to claims seeking unpaid wages
Barger & Wolen LLP
In Kirby v Immoos Fire Protection Inc, 2010 DJDAR 11569 (2010) the Third Appellate District of the California Court of Appeal decided an appeal challenging an award of attorneys fees to an employer who successfully defended against allegations of labor violations by two employees.

California court finds employers may be liable for wrongful termination when honoring competitors' non-compete agreements
Ford & Harrison LLP
A recent decision by the California Court of Appeals, finding an employer's decision to honor a competitor's non-compete agreement tantamount to a violation of California Business and Professions Code section 16600, thus violating public policy, underscores the Catch-22 faced by employers when hiring employees subject to covenants not to compete.

Creating new jobs at Aqueduct: majority hosts public presentation on getting proposal for Aqueduct racino
Duane Morris LLP
The Senate Majority Conference hosted the state Division of Lottery (DOL) for a presentation viewable to the public regarding the proposal by Genting, an international firm recommended by DOL, to develop and operate Aqueduct racino.

New preventive care coverage rules under health care reform
Venable LLP
The Departments of Labor, Treasury, and Health and Human Services recently issued rules that will require non-grandfathered, calendar-year, group health plans to meet new coverage requirements for preventive care beginning on January 1, 2011.

Supreme Court to rule on standard to recover benefits under ERISA when terms conflict
Baker & McKenzie
The United States Supreme Court may finally resolve a conflict among the United States Circuit Courts of Appeal on the standard to be applied when a plan participant seeks recovery under an ERISA plan and the terms of a Summary Plan Description ("SPD") or Summary of Material Modifications ("SMM") conflict with the express terms of the plan.

Additional external claims review guidance provided for self-funded group health plans
Ballard Spahr LLP
The U.S. Departments of Treasury, Labor, and Health and Human Services have released guidance on how employer-sponsored self-funded group health plans can satisfy the new external claims review requirements arising from the federal health care reform legislation.

The top five employee benefits and executive compensation traps in M&A transactions
McDermott Will & Emery
In M&A transactions, many lawyers (and clients) assume that employee benefits issues are tangential to the overall business deal and will "work themselves out" after the deal closes.

Company self-audits help avoid § 409a penalties
Mayer Brown LLP
Although companies are operating under severe budget and resource constraints, many have concluded that it is both worthwhile and cost-effective to engage in a self-audit of the administration of their non-qualified deferred compensation arrangements to ensure compliance with section 409A of the US Internal Revenue Code.

Fiduciaries did not breach duty of prudence by failing to divest investments in company shares
Katten Muchin Rosenman LLP
Plaintiffs, former employees of two energy providers, brought a consolidated class action, alleging that the fiduciaries of the companies' employee savings plans breached their fiduciary duties under the Employee Retirement Income Security Act by maintaining the savings plans' significant investment in stock of one of the companies, Constellation Energy Group, Inc.

An overview for plan sponsors and fiduciaries of the new requirements for service provider arrangements
McGuireWoods LLP
The Department of Labor (DOL) has issued new rules requiring disclosure of information in connection with services provided to ERISA-covered employee benefit plans.

New service provider fee disclosure rules for retirement plansVenable LLPLast month, the Department of Labor (DOL) issued interim final regulations with fee disclosure obligations impacting retirement plan service providers and plan sponsors.

Competitive cheer is not yet considered a varsity sport
Jackson Lewis LLP
Competitive cheerleading's bid to become a recognized varsity sport was dealt a setback after a district judge ruled that during the 2009-2010 season, the Competitive Cheer team at Quinnipiac University did not function as a varsity sport capable of counting toward the requirements of Title IX of the Education Amendments of 1972 ("Title IX").

U.S. Justice Department's new ADA regulations and accessibility guidelines for places of public accommodation and public entities
Duane Morris LLP
On July 23, 2010, the U.S. Department of Justice (DOJ) released new regulations, under title II and title III of the Americans with Disabilities Act (ADA), on accessibility for public entities and places of public accommodation.

Florida, New Jersey - A tale of two cases: the extent to which a New Jersey trial court disregarded a Florida appellate court?s decision and the continued viability of the learned intermediary doctrine in New Jersey
Sills Cummis & Gross PC
Can a New Jersey trial court, applying the law of another jurisdiction, disregard an intermediate appellate decision from that other jurisdiction that is directly on point?

Pennsylvania - Governor Rendell moves ahead with budget cuts
Duane Morris LLP
Governor Rendell announced on Wednesday, August 18 that he's implementing budget reductions to close a $280 million budget deficit.

Proposed ITAR amendment regarding dual nationals and third-country nationals
Winston & Strawn LLP
The United States Department of State is proposing to amend the International Traffic in Arms Regulations ("ITAR") requirements regarding dual nationals and third-country nationals employed by recipients of controlled goods and technology.

Secretary of State resigns
Duane Morris LLP
New York;s Governor Paterson announced that Secretary of State Lorraine Cortés-Vázquez will resign effective August 31, to take a position as Executive Vice President at AARP in Washington, D.C.
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Full post as published by New York Public Personnel Law on September 07, 2010 (boomark / email).