Monthly Archives: December 2010

Now is the Time to Review Your No-Solicitation Rules: The NLRB Is Considering Expanding Union Rights to Organize on Employer Premises

By:     Michael Casey, Peter Panken, and Steven Swirsky

The new Obama National Labor Relations Board (“NLRB” or the “Board”) has signaled that it will likely be granting union organizers the right to enter employers’ premises to conduct union organizing activity. This would reverse a trend in the last few years of preserving an employer’s property rights, and of confining union organizers to areas outside of an employer’s private premises, including those areas open to the public, in hotels, restaurants, clubs and other hospitality venues where non-employees are allowed access.

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Obama, Tea Party, Health Care, Jobs: A Midterm Review of the Impact on Labor and Employment Law – January 26, 2011 in Washington, DC

Whistleblower considerations are likely to be especially prominent in the new year and as a new Congressional term begins, leading to the 2012 election campaign.

Please join me and other attorneys from my firm, EpsteinBeckerGreen, as we present a full-day program covering labor and employment law topics that have increasingly impacted employers over the past two years. In addition, we will offer an outlook of what we should expect in the coming two years. Our keynote speaker is Darrel Thompson, Senior Advisor to Senate Majority Harry Reid, who will offer comments concerning the agenda of the 112th Congress. We are particularly pleased that Norah O’Donnell, MSNBC Chief Washington Correspondent, is attending the event as our guest luncheon speaker.

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U.S. Department of Labor to Refer Employees to Plaintiffs’ Lawyers

by Michael Kun and Doug Weiner

It is no secret that employers have been beseiged by wage-hour litigation, including wage-hour class actions and collective actions. These lawsuits have hit the hospitality industry as hard as any other industry, perhaps harder.

It is also no secret that the persons who benefit most from these actions are often plaintiffs’ counsel, who frequently receive one-third or more of any recovery.

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U.S. Department of Labor to Refer Employees to Plaintiffs’ Lawyers

by Michael Kun and Doug Weiner

It is no secret that employers have been beseiged by wage-hour litigation, including wage-hour class actions and collective actions.  It is also no secret that the persons who benefit most from these actions are often plaintiffs’ counsel, who frequently receive one-third or more of any recovery.  Now, as a result of an unprecedented new program initiated by the the Department of Labor’s Wage and Hour Division (“WHD”), the WHD will be practically delivering potential plaintiffs to the doors of plaintiffs’ counsel — and the WHD has invited plaintiffs’ counsel to let it know if it wants a piece of the action. 

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Supreme Court May Weigh in on When Employers Can Take Advantage of the "Fluctuating Workweek" Method for Calculating Overtime

By Kara M. Maciel and Jordan Schwartz

As many employers are aware, the federal Fair Labor Standards Act (“FLSA”) mandates that employers pay non-exempt employees one and one-half times their regular rate of pay for all hours worked in excess of 40 in a workweek. However, as discussed by our colleague, Richard Tuschman, in his blog post “Reducing Your Company’s Exposure on FLSA Exemption Claims,” depending on the nature of an employee’s work schedule and salary arrangement, an employer can take advantage of the “fluctuating workweek” method. In so doing, an employer may compensate a non-exempt employee for overtime compensation at a rate of one-half his or her regular rate – as opposed to the usual rate of one-and-one half times the regular rate – because such hours have already been compensated at the straight time regular rate, under the salary arrangement.     

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Update: Former Paint Company Technical Director Sentenced To 15 Months In Federal Prison For Trade Secret Theft

Last September, we wrote about David Yen Lee, a former Technical Director for a painting and coating company who pled guilty to downloading trade secrets from a secure computer system and transferring them to external thumb drives with the intention of using the trade secrets for the benefit of another.

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Bay Area Restaurant Chain Owners Face Criminal Charges for Employing Illegal Aliens

By:  Robert S. Groban, Jr.

On December 6, 2010, the U.S. Attorney’s Office in San Francisco announced that the owners of the El Balazo restaurant chain in the Bay Area had been charged in a 20-count criminal Information with tax fraud and harboring illegal aliens.  These charges arise out of a raid made by federal agents in May 2008 that resulted in the arrest of 64 illegal aliens at several of these restaurants.  The Information charges the owners with conspiracy to commit tax evasion, tax evasion, harboring illegal aliens for financial gain, and submitting false Social Security numbers for undocumented workers at the restaurants.  The defendants were arraigned on December 6, 2010 and each remain free on $100,000 bond.

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Court Affirms Jury Finding That Specific Information About Insurance Policy Holders Was A Trade Secret

The Iowa Court of Appeals recently affirmed a jury’s conclusion that detailed information about insurance policy holders was a protected trade secret. Monona County Mutual Insurance Association v. The Hoffman Agency, Inc., Case No. 0-640/10-0136 (Iowa Ct. App. Nov. 24, 2010). The customer information at issue, which was kept in a vault to which access was very limited and which was not shared with the public, included customer names, the type of insurance coverage held by each customer, policy expiration dates and the premiums paid for such policies. This information is used by insurance agents to contact customers before their policies have expired “to see if the customer’s needs have changed and to ensure the customer’s continued business.” An expert witness testified that this information “went to the heart of a business” and that if a competitor received such information, “business would essentially be handed to the competitor on a plate.” Although the defendant claimed that this information “was readily available to it” and therefore not a trade secret, the Court rejected that argument, explaining that it was unclear how the defendant “would know who to contact and when, without the information contained on the list.”

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Special Immigration Alert: December 3, 2010, H-1B Cap Count

As of December 3, 2010, the U.S. Citizenship and Immigration Service (“USCIS”) has confirmed the filing of approximately 51,200 H-1B cap-subject petitions for fiscal year 2011. USCIS also reported the filing of approximately 18,700 of the additional 20,000 H-1B cases reserved for holders of advanced U.S. degrees. This leaves room for approximately 13,800 new H-1B approvals under the 2011 “Regular” cap quota, and 1,300 H-1B approvals under the 2011 “Masters” cap quota.

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Washington Emergency Cardiac and Stroke System

Applications are now available for hospital participation in the new Washington Emergency Cardiac and Stroke (ECS) System. The ECS System is designed to provide timely treatment for cardiac and stroke patients, including getting the patient to the right hospital. The new law (Chapter 70.168 RCW), effective in June 2010, asks hospitals to self-identify cardiac and stroke capabilities.

For more information please visit www.omwhealthlaw.com or click on the headline above.

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