Anti-Retaliation Provision Of FLSA Does Not Apply To Job Applicant

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Published on Friday, 26 August 2011 17:33

Natalie Dellinger sued her former employer, CACI, Inc., in July 2009 for alleged violations of the Fair Labor Standards Act’s (FLSA) minimum wage and overtime provisions. During this time, she also applied for a job with Science Applications International Corporation (Science Applications). In late August 2009, Science Applications offered Dellinger a job, contingent on passing a drug test, completing specified forms, and verifying and transferring her security clearance. Dellinger accepted the offer. On the security clearance form, Science Applications asked Dellinger to list any pending noncriminal court actions to which she was a party. She listed the FLSA lawsuit against CACI.  Dellinger then submitted her completed form to Science Applications, but the company withdrew the offer of employment. Subsequently, Dellinger filed suit against Science Applications, alleging that the company's motive for withdrawing its offer was “retaliation and unlawful discrimination based on Ms. Dellinger's exercise of her protected right to file an FLSA lawsuit.”  Science Applications filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), contending that Dellinger's complaint did not state a claim for which relief could be granted because the FLSA's anti-retaliation provision protects only employees, not prospective employees/applicants. The district court agreed and dismissed Dellinger's complaint. On appeal, the court noted that this case “presents the question of whether an applicant for employment is an ‘employee’ authorized to sue and obtain relief for retaliation under § 216(b). Consistent with the FLSA's purpose to regulate the employer-employee relationship and the relevant text of the Act, we conclude that only employees can sue their current or former employers for retaliation under the FLSA and that an applicant is not an employee.” Read More.

NLRB Issues Advisory Memo in Twitter Case

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Published on Thursday, 02 June 2011 18:26

According to an advisory memo issued by the National Labor Relations Board (NLRB) in a case involving social media, an Arizona newspaper, the Arizona Daily Star, did not violate the National Labor Relations Act when it terminated a reporter for "unprofessional and inappropriate tweets" made via the reporter's Twitter account, even though the newspaper had encouraged reporters to set up Twitter accounts for news reporting purposes. The NLRB decided that the reporter's termination did not violate the NLRB provision of the National Labor Relations Act that protects communications by employees provided the communications relate to the employee's working conditions or employment terms. Specifically, the NLRB decided that posts on the reporter's Twitter account, which included: (1) "You stay homicidal, Tucson. See Star Net for the bloody deets" (2) "What?!?!? No overnight homicide? WTF? You're slacking Tucson" and (3) "Suggestion for new Tucson-area theme song: Droening [sic] pool's 'let the bodies hit the floor'" (which the employer deemed to be unprofessional and a violation of its policies) were not protected by the law. Although the NLRB arrived at this decision even though the employer did not have a social media policy, it is prudent for employers to have such policies in place....

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As Summer Approaches Employers Should Review Their Vacation Time Policies

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Published on Monday, 16 May 2011 17:51

As summer approaches, many employees will be requesting vacation time. Therefore, now is a good time for employers to review their vacation time policies to make sure they are compliant with the law. Pursuant to California and federal law, an employer is not required to offer employees either paid or unpaid vacation time. However, if an employer does have an established policy, practice, or agreement to provide vacation time to employees, then the law has certain requirements on vacation time. For example, under California law, earned vacation time is considered wages, and vacation time is earned, or vests, as an employee performs work for the employer. Thus, for example, if an employee is entitled to two weeks (10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. Vacation pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination (Suastez v. Plastic Dress Up (1982) 31 C3d 774). Therefore, "use it or lose it" polices are prohibited in California, although an employer can place a reasonable cap on vacation benefits that prevents an employee from earning vacation over a certain amount of hours (Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595). In addition, unless otherwise stipulated by a collective bargaining agreement, upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay (Labor Code Section 227.3). An employer may provide for a specific amount of time at the beginning of the employment relationship during which an employee does not earn any vacation benefits. This can apply to a probationary or introductory period, and can even apply to the whole first year of employment. However, such a provision in a vacation policy will only be recognized by the Division of Labor Standards Enforcement, "if it is not a subterfuge (phony reason) and in fact, no vacation is implicitly earned or accrued during that first year or other period."...

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Court Finds Tenured Teacher Engaged In Immoral Conduct

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Published on Wednesday, 04 May 2011 07:00

Frank Lampedusa, a tenured teacher with the San Diego Unified School District (District) appealed his notice of termination as a permanent certificated teacher by the District to the Commission on Professional Competence (Commission). The District based Lampedusa's termination on the allegation that he showed evident unfitness for service under Education Code section 44932, subdivision (a)(5); immoral conduct under section 44932, subdivision (a)(1); and persistent refusal to follow State Board of Education guidelines or the law under section 44932, subdivision (a)(7). Specifically, the District's alleged that Lampedusa's posting on Craigslist of an ad soliciting sex under the "men seeking men" section that contained graphic photos of his genitalia and other body parts, as well as obscene written text, which was discovered by a parent and reported to the District, violated the above code sections. The Commission determined that cause for the dismissal did not exist and reinstated Lampedusa's employment with the District. The District filed a petition for writ of mandate with the Superior Court of San Diego County. The court denied the petition, finding the District failed to show the Commission's findings were not supported by the weight of the evidence. The District appealed, asserting there was no substantial evidence to support the Commission's reinstatement of Lampedusa regarding the charges of immoral conduct and evident unfitness. On appeal, the court reversed, concluding that "there is no substantial evidence to support the Commission's decision as the evidence shows both evident unfitness to serve as a teacher and that Lampedusa engaged in immoral conduct, either of which constituted grounds for termination."...

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