- with readers working within the Business & Consumer Services industries
Fenwick Employment Brief - May 2012
Court Enjoins Enforcement Of NLRB Posting
Requirement
Adding to the confusion surrounding the controversial requirement
of the National Labor Relations Board that employers post notices
informing employees of their rights under the National Labor
Relations Act (reported in our
January 2012 FEB), the Court of Appeals for the District of
Columbia issued an emergency injunction blocking enforcement of the
rule. The injunction will remain in place pending an appeal of a
federal district court ruling that upheld the rule in part. This
action followed a South Carolina federal district court ruling that
invalidated the NLRB notice posting requirement. The rule was to
have gone into effect April 30, but is now in limbo pending further
court action. Stay tuned for more information.
Court Enforces Employment Arbitration Agreement That
Contains Class Action Waiver
Following the guidance set forth by the United States Supreme Court
in AT&T Mobility v. Concepcion (discussed in our April
28, 2011 Litigation Alert) and finding the NLRB's decision in
D.R. Horton and Michael Cuda (discussed in our
February 2012 FEB) unpersuasive, a United States District Court
in the Northern District of California determined that a mandatory
arbitration agreement entered into as part of an employment
agreement must be enforced according to its terms despite the
existence of a class action waiver provision.
The decision in Jasso v. Money Mart Express, Inc. is in line with other federal district court decisions (discussed in the February 2012 FEB) that have also declined to follow the holding of the NLRB's D.R. Horton decision and instead have applied the principles of Concepcion to enforce arbitration agreements despite the class action waiver provisions.
Party May Not Be Compelled To Arbitrate Class Claims
Where Arbitration Agreement Silent On Class
Arbitration
Finding that a party "may not be compelled . . . to submit to
class arbitration unless there is a contractual basis for
concluding that the party agreed to do so," a California Court
of Appeal held that an employer could not be required to submit to
arbitrate the plaintiff's class claims where the arbitration
agreement at issue neither authorized nor prohibited class
arbitration.
The plaintiff in Kinecta Alternative Financial Solutions, Inc. v. Malone brought both individual and class claims against her employer for various wage and hour violations. The employer moved to compel arbitration of the individual claims and dismiss the class claims from the arbitration, on the grounds that the arbitration agreement at issue did not contemplate arbitration of class claims. The California Court of Appeal agreed, and held that the employer was only obligated to arbitrate the individual claims for relief and not the class claims.
Maryland Prohibits Employers From Requesting Disclosure
Of Personal User Names and Passwords
On May 2, Maryland became the first state in the country to enact
legislation that prohibits employers from asking employee or job
applicants to disclose user names, passwords or other login data
for personal electronic accounts, including social media accounts.
The law was enacted in response to an incident in which a former
Maryland corrections officer was asked by a supervisor to disclose
his Facebook log in information.
While similar legislation has not yet been enacted in other states, asking employees or applicants to provide access information to personal accounts may be in violation of state privacy laws.
Multiemployer "No Poaching Agreements" Spawn
Civil Antitrust Claims
Following the settlement between the Department of Justice and
seven prominent high tech companies regarding the companies'
conduct in agreeing not to cold call employees of the other
companies – which the DOJ concluded was
"anticompetitive" and per se unlawful
– a class of software engineers filed a civil lawsuit
against the same companies for alleged antitrust violations. The
employers claimed that the plaintiffs could not establish facts
evidencing an antitrust violation – i.e., a
conspiracy to suppress wages – and moved to dismiss the
claims. However, the court determined that the plaintiff alleged
sufficient facts to support their claims. Thus the antitrust claims
survived dismissal and the case continues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
