BCLP At Work

Main Content

Avoiding State Law Pitfalls (Part 4 of 4)

June 19, 2017

Categories

This is the fourth hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Scenario #4

A manager of a Minneapolis, Minnesota restaurant calls you regarding an employee who showed up for work exhibiting bizarre behavior and with white powder under her nose.  The Company has a written policy prohibiting the use of illegal drugs and authorizing the Company to conduct probable cause testing of employees.  In accordance with Company policy, the employee undergoes testing which confirms that the employee is under the influence of cocaine.  The manager is calling for approval to terminate the employee.  You know that some states prohibit random drug testing, but you are not aware of any law that would prohibit an employer from discharging an employee who shows up for work under the influence of cocaine, especially when the employer has probable cause to test the employee and the testing confirms

The Italian Data Protection Authority restricts the monitoring of employees’ internet access and e-mail use

The Italian Data Protection Authority (“IDPA”) issued its first decision interpreting the amended Section 4 of the “Workers’ Bill of Rights,” concerning the monitoring of employees’ internet access and e-mail use.

In particular, the employees of a University in Italy claimed their employer monitored their personal data, by recording their web-browsing file logs (specifically, the Media Access Control address, “MAC Address”, and the Internet Protocol address, “IP Address”) and other personal internet-access information, using hidden software operating “in the background”.

The IDPA inquired and found the employer had wrongly classified its employees’ MAC and IP address data as being subject to no “personal protection” rules. This classification, according to the IDPA’s decision, would run contrary to the principles established by the EU Council of Ministers in its Recommendation No. CM/Rec (2015) 5, dated 1 April 2015.  Therefore, the IDPA found the generic notice included in the University’s internal privacy policy,

The California Supreme Court Provides Guidance on Day of Rest Requirements

June 14, 2017

Categories

The California Supreme Court clarified employer obligations under the state’s day of rest statutes, Cal. Labor Code §§ 550-558.1, which entitle employees to one day’s rest in seven.  In Mendoza v. Nordstrom, Inc., 2 Cal. 5th 1074 (2017), a case that was (mostly) good news for employers, the Court unanimously upheld interpretations of the requirement that largely preserved scheduling flexibility for employers and employees alike.

Three questions were certified to the Court for consideration:

  • Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
  • The day of rest requirement is calculated by workweek.  After finding the plain language of sections 551 and 552 “manifestly ambiguous” and the legislative history irrelevant to the dispute, the Court held that the regulatory and statutory schemes of the day of rest laws required the day of

    Employers May Substantially Reduce Their Potential Exposure for Employment-Related Lawsuits with a Simple Modification to Their Employment Applications

    June 12, 2017

    Categories

    Employers go to great lengths and expense to reduce their potential exposure to employment-related claims.  Most employers implement employment policies to address the ever-growing myriad of federal, state, and local employment laws, regularly conduct employee EEO training, hire qualified human resources professionals and in-house attorneys with expertise in employment law, and regularly seek advice and assistance from outside counsel concerning these prophylactic measures.  The article addresses a fast, simple, and inexpensive way to substantially reduce exposure to certain types of employment-related claims through the inclusion of an express waiver (“Waiver”) in a form employment application or other document signed by applicants or employees.  The Waiver contractually reduces to six (6) months the time period within which certain types of employment-related claims must be filed and waives any statute of limitations to the contrary, thereby significantly reducing the number of timely-filed claims and, consequently, the employer’s potential exposure.  Although waivers can

    Macron’s Reforms

    Macron’s Reforms

    June 8, 2017

    Authored by: François Alambret

    Emmanuel Macron was elected one month ago promising to reform France’s employment regulations. It’s too early to determine if Mr. Macron will succeed in opening up the French labor market and much will depend on the result of parliamentary elections that will be held in mid-June 2017. However, what are the main reforms that have been proposed by Mr. Macron?

    Click here to read the Alert in full.

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess the French labor market. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.

    Mass Dismissal Filings in Germany – Be Aware

    June 8, 2017

    Categories

    Successful restructuring measures in Germany, the more so if they result in RIF (reduction in force) proceedings, require very careful preparation, close observation of strict deadlines as well as very diligent processes with regard to works council information and consultation procedures.

    In the event that the number of affected staff exceeds the collective dismissal filing requirements, extra care is essential in particular for larger entities and globally operating employers: any formal mistakes by them will result in the terminations being null and void. To make things worse, by the end of last year the German Federal Employment Agency (Bundesagentur für Arbeit/ the Agency) introduced new forms and spreadsheets for German employers to fill in and file with the Agency prior to implementing any terminations in the course of mass dismissal.

    The relevant dismissal/ termination thresholds for notification of the Agency in the event of mass dismissals – within 30 calendar

    Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 3 of 3)

    Common Mistake No. 3: Poor Drafting of Termination Letters

    This post continues the discussion of common errors made by employers terminating employees which can be easily avoided.

    As a general rule, an employer may terminate an employee for a good reason, a bad reason, or no reason, just not for an illegal reason. Moreover, in most (but not all) states, an employer is not required to provide an employee with the reason for the employee’s termination. Although there are different schools of thought on the subject in light of the broad latitude given to employers in most states, I typically recommend including the reason(s) for the employee’s termination in the termination letter. In my experience, the termination of an employee without providing a reason usually strikes an employee as fundamentally unfair and increases the likelihood of the employee seeking advice from an attorney (which, in turn, increases the likelihood of

    Employers Should Accept Resignations As Soon As Possible

    Although an employee can claim constructive termination, it is always beneficial for an employer to accept, as soon as possible and in writing, an employee’s resignation.  By doing so, the employer creates a clear record that an employee was not fired and limits the potential claims which an employee can assert against the employer.

    This point was recently illustrated in Featherstone v. Southern California Permanente Medical Group.  In that case, the ultimate issue was whether a resignation is an “adverse action” under California’s anti-discrimination law, the Fair Employment and Housing Act.  In that case, Ms. Featherstone tendered her resignation on December 23, 2013, and it was immediately accepted.  The court recognized that general contract rules apply to resignations and that “a resignation is an offer which may be withdrawn prior to its acceptance.”  In that circumstance, however, though Ms. Featherstone subsequently tried to rescind her resignation, the court held that

    Avoiding State Law Pitfalls (Part 3 of 4)

    May 29, 2017

    Categories

    This is the third hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

    Scenario #3

    The manager of a restaurant in Hartford, Connecticut calls you regarding an outspoken cook who frequently expresses his views on controversial topics. All of the cooks discuss a broad range of topics while working, and these discussions do not interfere with their performance. Nevertheless, the manager has advised the cook that he should be careful about offending others with his views on sensitive topics. The cook responds that this is America, and he has a constitutional right to say whatever he wants. The manager asks you whether this is true. You correctly advise the manager that the First Amendment to the U.S. Constitution does not apply to private employers. Rather, federal constitutional rights only come into play if there is some form of “state action.” The next time the cook expresses

    Mandatory Paid Sick Leave for Arizona Employees: How Proposition 206 Impacts Your Business

    After surviving a legal challenge rejected by the Arizona Supreme Court, Arizona’s $10 minimum wage enacted under Proposition 206 is already in effect, and the sick leave portion of the law takes effect in July. For many companies, this will require new paid time off and sick leave policies, or at least revisions to their existing policies.

    With enactment of Proposition 206, Arizona joins other states with sick leave laws, including Illinois, California, Oregon, Washington, Massachusetts, Vermont, and Washington, D.C. As previously reported by the Bryan Cave Retail Law blog, the Illinois law took effect in January 2017.

    The Arizona law generally applies to all Arizona employees; it makes no distinction between salaried, hourly, full-time, part-time, temporary or seasonal employees. All employees must accrue one hour of paid sick time for every 30 hours worked.

    Paid sick leave can be used for medical care of a mental or physical illness,

    The attorneys of Bryan Cave LLP make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.