California Employment Law Update : Labor and Employment Lawyers & Attorneys : Proskauer Rose Law Firm : Wage & Hour Laws, Disability, Workplace Safety

As the federal government wades deeper into the realm of mobile "apps" (among the most useful, of course, the Smithsonian Institution’s “MEanderthal” app, which enables users to morph personal photos into prehistoric images of themselves), various U.S. agencies are promoting new apps that allow the public to access official information from “the palm of [one's] hand.”

Not to be left behind, the U.S. Department of Labor (DOL) recently rolled out a smartphone app to help employees independently track the hours they work. The “DOL-Timesheet,” as the app has been dubbed, is currently available in English and Spanish for use on the iPhone, iPod Touch, and iPad. The app is designed to assist employees in recording their hours worked and calculating the wages – including overtime – that they're owed. (Overtime pay is computed at a rate of one and one-half times the employee’s regular rate for all hours worked each week in excess of 40 – though California also has a daily overtime requirement for hours worked in excess of eight.) Users are currently able to view and email summaries of their logged hours and gross pay, and additional features have been promised, including the ability to track tips, commissions, bonuses, deductions, holiday and weekend pay, shift differentials, and paid time off.

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On Wednesday, June 22, from 12:00 to 1:00 p.m., Anthony Oncidi of Proskauer and plaintiff-side attorney, Andrew Friedman of Helmer Friedman LLP, will summarize the latest developments and discuss the practical implications of this year’s most significant employment decisions. Among other developments, attendees will hear about the new U.S. Supreme Court rulings regarding the “cat’s paw” liability theory (Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011)), third-party retaliation claims (Thompson v. North Am. Stainless, LP, 131 S. Ct. 863 (2011)), whether state limitations on arbitration agreements are preempted by federal law (AT&T Mobility v. Concepcion, 2011 WL 1561956 (2011)), and whether an employee who complained orally about a FLSA violation is protected from retaliation (Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011)). And, of course, our panelists will cover the latest developments in the ongoing deluge of wage-and-hour cases including new cases holding that the “explicit mutual wage doctrine” barred a janitor’s claim for additional unpaid overtime (Arechiga v. Dolores Press, Inc., 192 Cal. App. 4th 567 (2011). They also will discuss how employees who misuse their employer's computer system to set up a competing business may be in violation of the federal Computer Fraud and Abuse Act (U.S. v. Nosal, 2011 WL 1585600 (9th Cir. 2011)) and the latest from the California courts on whether an allegedly "bi-polar" employee who threatened co-workers can assert a disability discrimination claim once she's been fired (Willis v. Superior Court, 194 Cal. App. 4th 312 (2011)).

The presentation will earn attendees 1 hour of participatory CLE credit. To register, see 2011 Employment Law Update: A Mid-Year Review of Recent Developments or go to http://www.legalspan.com/calbar/catalog.asp and select Tele-Seminars and Webinars.

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As we reported previously, in December 2007 the National Labor Relations Board issued a decision relating to company e-mail policies in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (2007), holding that an employer (i) may restrict the use of its computer systems to business related uses only, and (ii) could distinguish between personal and organizational solicitation in enforcing its no-solicitation policy.

Earlier this week, in The Register-Guard v. NLRB, No. 07-1528 (D.C. Cir July 7, 2009), the D.C. Circuit issued its decision reversing, in part, the Board’s decision.

Neither party requested review of (and, thus, the court did not address) the Board’s general holding that allowed restricting the use of company e-mail to business purposes.  The Court also chose not to address the Board’s position on distinguishing between the types of solicitation. Instead, it held that based on the facts of this particular case — where the policy in question did not actually make a distinction between types of solicitation — the employer could not discipline an employee for a union-related solicitation. As discussed below, the decision highlights the risks to employers who act based on the current Board law in the absence of a clear written policy that makes an explicit distinction between types of solicitation. Moreover, even if employers have such a policy now, the future Obama Board is likely to modify the current law.

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As of this writing, the Centers for Disease Control and Prevention has confirmed 109 cases of the H1N1 virus, commonly known as swine flu, in the United States. The World Health Organization has confirmed 331 cases of swine flu worldwide and has raised the pandemic threat level to Phase 5 on its six-step scale (Phase 5 designation essentially means that infections from the outbreak that originated in Mexico have been jumping from person to person with relative ease). This Client Alert outlines a few of the myriad legal issues that employers may face with regard to swine flu. As every situation is different, employers are strongly encouraged to seek the advice of counsel with respect to any questions related to these issues. We are, of course, available to provide a more detailed analysis as to any of the matters discussed below or to advise on any other questions that you may have on pandemic flu planning and its implications for the workplace.

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