Category Archives: Employment Laws

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Misrepresentation on employment application may override state criminal background check law.

help wantedMost employers understand the importance of compliance with the federal Fair Credit Reporting Act (FCRA) as it applies to background checks and applicant records. However, employers also must recognize the interplay of state law restrictions on the use of background checks in the application and employment process. Recently, a federal district court in Pennsylvania granted … Continue Reading

Continued Employment is Insufficient Consideration for Non-Compete Agreement in PA.

This article was written by John H. Riordan, Jr. Of Counsel in Ogletree Deakins’ Pittsburgh Office. In general, contracts “in restraint of trade” have been considered to be illegal. One exception under most state laws is the “Non-Compete Agreement,” wherein an employee agrees – typically upon being hired – not to compete with his/her employer … Continue Reading

What’s open (Mount Rushmore) and what’s closed (the IRS, e-Verify, and the OFCCP). Here’s the latest information.

Well, at least Mount Rushmore is open again, along with the Statue of Liberty and the Grand Canyon.  But for most of the Administrative Agencies related to labor and employment, things haven’t gotten much better since last week, and the deadlock in D.C. continues.  Here’s the latest information available: Department of Labor (DOL) • Only 2,954 out … Continue Reading

Employee was awarded UC benefits after being fired for failing to repair or replace her inoperable automobile

On August 29, 2013, the Commonwealth Court of Pennsylvania – an intermediate appellate court – affirmed an Unemployment Compensation Board of Review (UCBR) decision that because an employee who was earning $9.00 an hour was unable to afford to pay for care repair or to buy another vehicle, the employee showed “good cause” for violating … Continue Reading

WARN Act’s “unforeseeability” defense allows a reduction, but not elimination, of the required notification period.

The 11th U.S. Circuit Court of Appeals has determined that a casino which had instituted two layoffs that ultimately culminated in the closure of its facility violated the federalWorker Adjustment and Retraining Notification (“WARN”) Act by failing to provide notice to its former employees in a timely and appropriate manner. This liability was established in … Continue Reading

OFCCP directive specifies calculations for back pay relief in discrimination cases against federal contractors

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new directive entitled “Calculating Back Pay as a Part of Make-Whole Relief for Victims of Employment Discrimination” (“Directive”). The Directive addresses the two distinct models for calculating back pay relief – formula relief and individual relief – and indicates when … Continue Reading

Firing replacement workers to allow striking employees to return is not a “mass layoff” under WARN Act.

The Worker Adjustment and Retraining Notification (WARN) Act requires a 60-day notice to employees before a “mass layoff” can take place. A mass layoff is a reduction in force which is not the result of a plant closure, but which results in an employment loss of at least 50 full-time employees at a single site. … Continue Reading

Employer’s actions have unintended consequences in Texas whistle-blower case.

In one of the most dramatic and convoluted scenarios ever seen in a whistle-blower case, a doctor has been disciplined by a medical board; a hospital administrator has been jailed; two nurses have been fired, criminally charged, acquitted, and then awarded $750,000; and a local sheriff has been removed from office and sentenced to jail, … Continue Reading

U.S. Supreme Court rules that the “Cat’s Paw” theory can create liability for discrimination.

The U.S. Supreme Court has held, by unanimous opinion, that an employer may be held liable for employment discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on the “discriminatory animus” of an employee who influenced, but did not make, an ultimate employment decision. In interpreting the so-called "cat’s paw" theory of … Continue Reading

Employees who stop coming to work because business is closing are entitled to 60-day notice under the WARN Act.

The Worker Adjustment and Retraining Notification (WARN) Act states that an employer cannot order a plant closing or mass layoff that will affect 50 or more employees without a 60-day written notice to each affected employee. An “affected employee” is someone who is expected to experience an employment loss as a result of the closure … Continue Reading

The IRS has developed a form affidavit to confirm that an individual is a “qualified employee” under the new HIRE Act.

The Internal Revenue Service has developed a form (Form W-11) for use by employers to confirm that an employee is a qualified employee under the Hiring Incentives to Restore Employment (HIRE) Act. While it is acceptable to use a similar statement, such alternate statement will only be acknowledged by the IRS if it contains the … Continue Reading

Newly signed “jobs bill” provides tax breaks to companies that hire unemployed workers.

On March 18, 2010, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act, which contains more than $17 Billion in tax credits aimed to stimulate employment, and includes $20 Billion for highway and transit infrastructure programs. One of the most important provisions for businesses is a tax credit for hiring from the ranks … Continue Reading

Company violated federal law by accessing employee’s invitation-only MySpace chat group without authorization.

In an unpublished opinion, a federal district court in New Jersey has upheld a jury verdict in which a company was found liable for violating the federal Stored Communications Act (SCA). The violation occurred when the company’s managers intentionally accessed a “chat group” on an employee’s MySpace account without having received authorization from the MySpace … Continue Reading

Sarbanes-Oxley’s 90-day statute of limitations not triggered by conditional firing.

An employee alleging a violation of the Sarbanes-Oxley Act (SOX) must file a complaint within 90 days from the date of that alleged violation. That 90-day period begins to run from the date on which the complainant knows or reasonably should know that the complained-of act has occurred. In whistleblower cases under SOX, the 90-day … Continue Reading

Employer 2009 “to do” list

As you plan for 2009, every employer should take steps to address the amendments to the Americans with Disabilities Act (ADA), the new Family and Medical Leave Act (FMLA) regulations, and the anticipated passage of the Employee Free Choice Act (EFCA). The following is a suggested "to do" list.… Continue Reading