Labor & Employment Law Update

As we reported on May 13, 2016, there is now a federal statute, called the Defend Trade Secrets Act (DTSA) that provides a federal cause of action for trade secret misappropriation. The full DTSA is found here.

One important feature of the DTSA is that it, like most state trade secret statutes, allows employers to recover punitive damages and attorney’s fees for the unauthorized use or disclosure of trade secrets. However, unlike the state statutes, the DTSA conditions the availability of these remedies on compliance with certain notice requirements contained in Section 7 of ...

On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act (DTSA).  DTSA provides a new federal cause of action for misappropriation of trade secrets. A “trade secret” is a broad category of intellectual property. Essentially, it includes any business information that is confidential and derives value from not being known to competitors. It can include everything from technology, to business strategies, to proprietary information about customers and prospects. Unlike patents, copyrights or trademarks, there is no registration system for trade secrets ...

A recent federal appellate court decision underscores the importance of strong employment policies to establish the company’s expectations and potentially save the company from protracted and expensive litigation.

In Tsegay v. Amalgamated Transit Union, 1235, the court found that a union refusing to arbitrate a grievance did not breach its duty of fair representation to a union member terminated for using a mobile device while operating a passenger vehicle. No. 15-6102 (6th Cir. Apr. 27, 2016).

After passenger complaints of texting-while-driving, employer Metropolitan ...

Employers conduct employee background checks to reduce risk and improve hiring decisions. Ironically, any missteps during the background check process can open employers to significant legal exposure that easily outweighs any benefit obtained from using background checks in the hiring process. The Equal Employment Opportunity Commission’s (EEOC) has been clear that use of background checks in the hiring process might lead to discrimination claims. However, our experience shows that employers face a far greater threat to legal exposure when conducting employee ...

“The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected activity. In this case a government official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor.” So begins Justice Stephen Breyer’s decision in Heffernan v. City of Paterson, which the United States Supreme Court issued on April 26, 2016.

Heffernan was a police officer working for the Paterson Police Department in New Jersey. His supervisor ...

On April 26, the 4^th Circuit of the U.S. Court of Appeals joined other federal circuits that have upheld NLRB approval of “micro-units.” See, Nestle Dreyer’s Ice Cream Co. v. NLRB, No. 14-2222 (4^th Cir. Apr. 26, 2016). This is another boost for unions because micro-units ease their path into industries and business that have been difficult for them to organize in the past.

How do micro-units help unions and hurt employers?  When a union files a petition with the NLRB to represent a group of employees, a larger unit is generally favorable for an employer because it is more ...

On April 4, 2016, the Los Angeles City Council just voted on their support of increasing California’s allotment of paid sick days for employees to twice the amount given under California’s Paid Sick Leave Law. This means employees would be allowed to earn six paid sick days during the course of the year (as opposed to only 3 under California’s current law). The law still needs to be drafted, but if it is passed, larger employers will need to be in compliance by July of this year, smaller employers (25 or less) would have a year to get fully compliant.

This comes on the heels of LA’s ...

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it received significantly more H-1B petitions than allowed under the statutory cap for fiscal year (FY) 2017. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming. The number of petitions filed this year, 236,000, exceeded last year’s high of 233,000 petitions.

The USCIS began to issue receipt notices using the random, computer generated selection process or ...

Every employer offering a 401(k) plan is faced with the decision about what investment options to make available to participants through their plan. Investment options carry different risks as well as different costs. The amount of total assets in a 401(k) plan can affect the variety of investment options an employer can make available to participants. Typically, a greater variety is available to larger plans. Most employer/plan sponsors aim to provide a diverse offering in order to allow participants a wide variety of options in directing their own investments. In designing ...

The Eighth Circuit Court of Appeals recently affirmed a Nebraska federal court’s decision ruling that to constitute an ADA impairment, obesity, even morbid obesity, must be the result of a physiological disorder or condition. In the case of Morriss v. BNSF Ry. Co, Case No. 14-3858 (8^th Cir. April 5, 2016), the court held that a morbidly obese job applicant rejected for a position as a railroad machinist could not show he was regarded as disabled under the ADA.

Melvin Morriss applied for a machinist position with BNFS Railway Company in March 2011. He was extended a conditional ...