Labor and Employment Digest: February 2014

InsideCounsel brings together the voices of firms active in the space to get their take on the issues shaping the policies of workplace compliance and regulation

In a practice area with as much individuality as labor and employment law, the voices of law firms inject the kind of color, insight and expertise that provide inside counsel and other legal professionals with a cornerstone of true understanding. Here, InsideCounsel brings together the voices of firms active in the space to get their take on the issues shaping the policies of workplace compliance and regulation.

Whistleblower expansion in California

The expansion of whistleblower litigation in California is something for plaintiffs to toot about. Senate Bill 496 was passed in 2013, which essentially eliminates any restriction on an employee bringing a whistleblower action for virtually any kind of complaint. The statute removes the “job duties” exception and makes clear that it is now sufficient for any employee to anticipatorily complain to a supervisor about a belief of a violation of local rule or regulation for whistleblower protection.— Rebecca K. Kimura, associate, Lafayette & Kumagai LLP

—Rebecca K. Kimura, associate, Lafayette & Kumagai LLP

The legality of criminal background checks

An employer’s use of an individual’s criminal history in making employment decisions may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964. Indeed, the Equal Opportunity Employment Commission (EEOC) has issued updated guidance involving the use of criminal background checks by employers. Moreover, a legislative trend aimed at reintegrating millions of ex-offenders into the workforce has gathered critical mass over the past year that use of criminal history may now be illegal in some jurisdictions.

—Theodora Lee, shareholder, Littler Mendelson

NLRB advances pro-labor agenda

For the first time in a decade, the National Labor Relations Board (NLRB) is at full strength. A full complement of five confirmed board members and a new general counsel are expected to advance the agency’s pro-labor agenda. Consequently, employers can expect the board to continue scrutinizing the procedures of union and non-union employers alike. Counsel are therefore encouraged to review policies regulating social media, confidentiality, premises access and at-will status for compliance with the latest requirements.

—Steven M. Bernstein, partner (Tampa, Fla.), Fisher & Phillips

Integrating leave and benefit programs after Windsor

In the wake of the Supreme Court’s United States v. Windsor decision striking down Section 3 of the Defense of Marriage Act (DOMA), employers are attempting to review leave and benefit programs to ensure compliance with the federal Family and Medical Leave Act (FMLA), state leave laws, Employee Retirement Income Security Act (ERISA) and federal tax rulings. This is no easy task and inevitably may require varying leave and benefits for employees with same-sex spouses.

—Michelle E. Phillips, partner (White Plains, N.Y.), Jackson Lewis”

Managing Editor

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Chris DiMarco

Chris DiMarco, Managing Editor of InsideCounsel magazine, has a background in multimedia production with previous involvement in projects in which he developed and created content for...

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