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Category Archives: Litigation

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New Jersey Federal Court Cautions Employers When Responding to Even Routine Demand Letters

By Robert Bernstein on Posted in Discrimination, Litigation

Though it has long been a common practice for in-house counsel to respond to routine (and not so routine) demand letters, a recent New Jersey District Court decision should cause in-house counsel serious concern when doing so in the future. In Bourhill v. Sprint Nextel Corp., the Court allowed into evidence a portion of a letter written by an in-house attorney, prior to the action’s commencement, explaining why counsel’s position was factually meritless, but offering to entertain counsel’s invitation to resolve the matter so as to avoid litigation (the Court opinion is attached for your convenience). And this decision affects in-house counsel’s exchanges not only in the employment context, but also extends to all litigation.

Good News From the California Supreme Court on Mixed Motive Discrimination Cases…at Least for Now

By Marc Koenigsberg on Posted in Discrimination, Litigation, State Law

It is an age old litigation problem.  The employee engaged in conduct the employer found sufficient for termination.  The employee claims that was not the real reason and points to alleged discriminatory acts. How does one decide the issue?  As importantly, from an HR perspective, how does the employer assess risk as no workplace is… Continue Reading

Employers Can be Held Liable for Failing to Protect Employees From Sexual Harassment Based on Sexual Orientation

By Jack Gearan on Posted in Discrimination, Harassment, Litigation, State Law

In a unanimous decision due to be published on May 15, the Connecticut Supreme Court has ruled that employers can be held liable for failing to protect employees from harassment based upon sexual orientation.  In Patino v. Birken Manufacturing Company, a former employee of the jet engine component maker Birken Manufacturing, Co. accused the company of… Continue Reading

California Supreme Court’s Kirby Decision: If Money Talks, is This Another Post-Brinker Blow to Meal and Rest Period Claims?

By Mark Kemple and Tiffany Fordyce on Posted in Litigation, State Law

On April 30, 2012, the California Supreme Court issued a decision holding that the fee shifting provisions of California Labor Code sections 128.5 and 1194 do not apply to claims for wages made pursuant California Labor Code section 226.7 for failure to authorize meal and/or rest periods. Kirby v. Immoos Fire Protection, Inc., ____ Cal. 4th ___ (2012).

OSHA Alert – February 1 Deadline for OSHA 300-A

By Michael G. Murphy on Posted in Litigation, OSHA

The OSHA Standard for Reporting and Recording Occupational Injuries and Illnesses, 29 C.F.R. § 1904, requires that certain employers track work related illnesses and injuries of their employees throughout the year, and post the summaries of those injuries from the previous year from February 1 to April 30. OSHA’s deadline for employers to post their annual summary of injuries and illnesses is February 1, 2012.

Social Media Posts and Concerted Activity

By Eric Sigda on Posted in Litigation

In the last several months, the National Labor Relations Board (“NLRB”) has attracted attention by issuing complaints against employers who disciplined or discharged employees for posting comments on Facebook or other social media criticizing the employer (see NLRB A ‘Twitter Over Employers’ Social Media Policies, and Social Media in the Workplace – The Social Media… Continue Reading

New Remedies Under ERISA for Employees Harmed by Misinformation

By GT Labor & Employment Team on Posted in Benefits, Litigation

Employers providing employees with benefits subject to ERISA have a duty to provide accurate benefit information to employees. As with many areas of ERISA, the definition of “inaccurate” information and the consequences to employers for providing inaccurate information has been unclear. The United States Supreme Court addressed this gray area of ERISA in CIGNA Corp…. Continue Reading

Social Media and Discovery: Accessing Password Protected Material

By Eric Sigda on Posted in Litigation

Social media is everywhere, including, with increasing frequency, in lawsuits, particularly those involving employment-related claims. For example, employers sued by potential, current, and former employees are seeking social media information to learn if on-line postings by those employees on social media sites contradict statements or contentions made by them in their lawsuit. For their part,… Continue Reading

The Ever Increasing Size of Class Action Lawsuits

By Eric Sigda on Posted in Discrimination, Litigation

Recently, it seems, class action lawsuits against employers are getting bigger. Firms that in representing plaintiffs are targeting companies with class action litigations, in particular lawsuits alleging gender discrimination. These lawsuits allege gender discrimination against a few women combined with evidence designed to show a pattern of discrimination against women throughout the company to create a plaintiff… Continue Reading

Transgender Man Challenges Firing From Male-Only Job

By GT Labor & Employment Team on Posted in Discrimination, Litigation

A job discrimination suit recently brought under the New Jersey Law Against Discrimination (“NJLAD”) challenges an employer’s decision to terminate a transgender man from a “male-only” position. Urban Treatment Associates in Camden, New Jersey, hired El’Jai Devoureau as a part-time urine monitor, but terminated him after his supervisor discovered that his assigned sex at birth… Continue Reading

Worker Misclassification: Does Action By Attorney General Cuomo Portend Even Greater Enforcement Activity In New York Under A Governor Cuomo?

By Jonathan Israel on Posted in Litigation, State Law, Wage & Hour

In prior articles and blog entries, we have reported on the ever-increasing and intense focus of federal and state government on issues of worker misclassification, as lawmakers and agencies around the country have heightened enforcement activity and potential penalties against businesses suspected of misclassifying employees as independent contractors.  New York State has been leading the charge… Continue Reading

Second Circuit: Pharmaceutical Sales Representatives Are Entitled To Overtime

By GT Labor & Employment Team on Posted in Litigation, Wage & Hour

  On June 6, the Second Circuit ruled that pharmaceutical sales representatives (“PRs”) were entitled to overtime under the FLSA because they did not meet the requirements of either the outside sales employees or administrative exemptions. Employers who treat outside salespersons as exempt under either exemption may want to reexamine their policies in light of the… Continue Reading

The Franchise Relationship: A New Front in the Attack on Worker Misclassification?

By Jonathan Israel on Posted in Legislation, Litigation, State Law, Wage & Hour

It is no secret:  Cash-strapped federal and state governments have been stepping up enforcement and increasing penalties against businesses that misclassify employees as independent contractors and exposing these businesses to additional employment-related liabilities for wage and overtime pay, health, welfare and retirement benefits, and income and employment tax contributions and withholding.  We have been watching… Continue Reading

The End of Class Arbitration?

By GT Labor & Employment Team on Posted in Litigation

Many employers require that employees agree in writing to arbitrate any disputes that may arise in connection with their employment. The reason is simple: arbitrating employment disputes usually is less expensive and provides a quicker resolution than litigation. However, like litigation, arbitration can sometimes be unpredictable. This presents a problem because, unlike litigation, it is… Continue Reading