ENDA is certainly not new legislation.  ENDA, in one form or another, has been introduced in every Congress, except one, since 1994.  In 1996, ENDA failed to pass the Senate by only one vote.   In 2007, the first transgender-inclusive version of the bill was introduced.  That same year, a modified bill excluding transgender protections passed the House but did not come up for vote before the Senate.  Since 2007, all versions of ENDA have included prohibitions on discrimination based on gender identity; however, no transgender-inclusive version of ENDA has ever passed the House or Senate.

The question then becomes, will ENDA fare any better in the 113^th Congress?  Even ENDA’s strongest supporters acknowledge that the bill currently has no clear path to passage in the House.  Still, support for the bill, and cultural attitudes towards LGBT individuals as a whole, has likely never been better.  Recent polls have shown that a majority of Americans are in favor of laws protecting LGBT workers from employment discrimination.  Additionally, 87 percent of Fortune 500 companies already maintain policies prohibiting discrimination based on sexual orientation, and over 50 percent of those companies likewise prohibit discrimination based on gender identity.  This support has carried over into the legislative arena.  21 states and the District of Columbia now prohibit employment discrimination based on sexual orientation.  Of those 21 states, all but 5 also prohibit discrimination based on gender identity.

It is all but certain that if ENDA passes both chambers of Congress, President Obama will sign the bill.  We plan to watch the bill closely and keep you posted on its developments.

Most businesses possess confidential information or trade secrets that need to be safe-guarded, or intellectual property, equipment, or processes that set them apart from their competition. Many companies choose to protect this information using “restrictive covenants” – agreements in which employees promise not to compete with the business in the future, lure away its employees or customers and/or divulge its confidential information.

Recently, a new bill (A3970) was introduced to the New Jersey State Assembly which would invalidate certain restrictive covenants in order to address New Jersey’s high rate of unemployment. Pursuant to A3970, non-compete, non-solicitation and non-disclosure provisions would be unenforceable with respect to individuals who are eligible for New Jersey unemployment insurance benefits. (Generally, unemployment benefits are available to workers who are laid off or discharged for reasons other than gross misconduct).

The proposed measure is intended to limit barriers to employment in an attempt to reduce New Jersey’s above-average unemployment rate (9.3 percent compared to 7.6 percent nationwide). The bill’s sponsors, Peter Barnes, Joseph Egan and Wayne DeAngelo, hope that A3970 will allow unemployed workers to get back to work (and off unemployment benefits) sooner.

There may, however, be unintended consequences if this bill is passed.  For example, employers would be more likely to contest workers’ eligibility for unemployment benefits, in order to ensure that their restrictive covenants remained enforceable. The proposed bill might also discourage companies from establishing or expanding their businesses in New Jersey due to the inability to adequately protect their confidential information. In addition, companies may move high-level employees out of New Jersey into states where post-employment covenants are enforceable. The proposed legislation also creates incentives for employees who resign to argue that they were “constructively discharged,” or even to perform poorly in order to trigger a discharge that would relieve them of their post-employment obligations.

If enacted, this legislation would not be retroactive and would only apply to agreements entered into after the bill takes effect. Given the uncertainty raised by this very broad bill, employers should consider entering into restrictive covenants with high-level employees sooner rather than later. If the bill is passed, employers may also want to consider taking measures to ensure that key terminated employees are not deemed eligible for unemployment compensation, such as a structured severance payment covering the term of the restrictive covenant. We will continue to monitor the bill and will provide updates as they become available.

Plaintiff Linda Eagle (“Eagle”) co-founded Edcomm, a banking education company, in 1987. In 2009, with encouragement from Edcomm’s co-founder, Eagle created a LinkedIn account using her Edcomm e-mail address to develop business for Edcomm. Edcomm subsequently urged employees to create LinkedIn accounts and to become involved in the account content, though it never required them to do so. Eagle gave her LinkedIn password to fellow Edcomm colleagues to enable them to respond to inquiries and update her LinkedIn account on her behalf.

Another company purchased Edcomm, and terminated Eagle’s employment on June 20, 2011. Immediately after Eagle’s separation, Edcomm employees accessed Eagle’s LinkedIn account, changed the password, and effectively locked Eagle out of her account. Thereafter, Eagle was unable to access her LinkedIn account. She then sued Edcomm, alleging several state law tort claims, including unauthorized use of name, invasion of privacy by misappropriation of identity, and misappropriation of publicity.

The Court sided with Eagle, finding that she owned the LinkedIn account, had an exclusive right to control it, and had been denied the ability to use the account for business activities. However, because Eagle could not establish a single contract, client, or even prospective client that she was unable to procure due to Edcomm denying her access to the account, the Court did not award Eagle any damages.

Because there is such a prevalence of social media in the course of everyday life, it is no surprise that social media is becoming increasingly prevalent in business.  As a result, employers must establish and enforce clear policies and ownership agreements regarding social media accounts used for business purposes. Here, the Eagle Court noted that Edcomm had an “intense interest” in ownership of LinkedIn accounts such as the one at issue in this case, yet had not adopted a clear policy addressing the subject. Effective policies and agreements should clearly state that the employer owns the account, and set forth procedures for returning login and password information if an employee is terminated.

• Assembly Bill (A.B.) No. 10 amends the minimum wage laws to introduce an incremental increase over the next three years from the current $8.00 per hour to $9.25 by 2016.  Starting in 2017 the minimum wage would adjust each year to maintain employees’ purchasing power.
• A.B. No. 35 claims to clarify existing law regarding employment performed by a person who holds a favorable decision granting deferred action under the federal Deferred Action for Childhood Arrivals program.  Such persons would be eligible for unemployment compensation, to the extent that they otherwise would qualify.
• A.B. No. 326 amends California’s occupational safety and health reporting requirements.  Employers currently must make complete reports of every occupational injury or illness incident.  The new law would require every employer to make an immediate report of any hospitalization or fatality incident that occurs within 30 days of a work-related incident, even if the hospitalization or fatality occurred after the report of work-related incident.
• A.B. No. 332 requires employers engaged in the production of adult films to adopt safety and sexual health procedures on the filming set to protect employees from exposure to blood and other potentially infectious material.  Specific requirements include offering hepatitis B vaccinations, requiring the use of condoms during the filming of specified sexual acts, and ensuring proper disposal of contaminated sharp devices.
• A.B. No. 442 expands the penalty and restitution provisions of the Labor Code relating to violations of the statutes and administrative orders regarding the payment of wages.  Employers cited for violations could be subject to payments of additional liquidated damages to employees.

• Senate Bill (S.B.) No. 168 amends the law to clarify successor liability that farm labor contractors owe for the wages of any predecessor farm labor contractor.  If certain conditions are met, farm labor contractors would be liable for wages and penalties owed and may face misdemeanor charges in certain circumstances.
• S.B. No. 270 amends existing law to require agencies participating in the Joint Enforcement Strike Force on the Underground Economy to coordinate their law enforcement efforts and more efficiently share information, to the extent possible.  The Strike Force is intended to combat tax violations and cash-based employment.
• S.B. No. 390 amends the law so that it is a crime punished as either a felony or misdemeanor for an employer to fail to remit withholdings required by state, local or federal law from an employee’s wages.  Current law makes it a crime to fail to remit agreed-upon withholdings for health and welfare funds, pension funds, and various benefit plans.
•  S.B. No. 400 amends current law to extend anti-discrimination employment protections to victims of stalking.  Current law only protects employees who take time off from work to attend to issues arising from domestic violence or sexual assault.

However, the legality of the internship relationship is subject to increasing scrutiny. In 2010 the Department of Labor (“DOL”) set forth new guidance to help determine whether interns must be paid minimum wage and overtime under the Fair Labor Standards Act (“FLSA”) for the services provided to “for-profit” private sector employers. Since the introduction of the DOL’s guidance there has undoubtedly been a surge in wage and hour lawsuits filed on behalf of unpaid interns to seek wages. The Charlie Rose show has reportedly settled for $250,000 in back wages to 189 interns. Notably, the emerging trend in litigation is not limited to unpaid interns. In New York, a former Intern/Assistant Football Coach filed suit against Hamilton College’s Athletics Department alleging that he was paid the same monthly stipend regardless of the number of hours he worked, in violation of the FLSA’s minimum wage and overtime requirements. The plaintiff is representing a class of forty former interns, and is seeking unpaid overtime wages, liquidated damages, interest, and attorneys’ fees.

The potential costs of internship litigation are daunting; however, internships are still a valuable resource for employers and interns. Accordingly, employers should structure their internship programs to comply with DOL guidance. Pre-planning is critical. Questions regarding the applicability of the FLSA’s minimum wage and overtime requirements should be assessed using the DOL’s promulgated criteria. A private sector employer should be able to answer the following questions before classifying an internship as exempt from FLSA wage and hour requirements:

• Is the employment experience primarily for the benefit of the intern and not the employer?
• Is the internship comparable to training offered in an educational environment?
• Does the intern displace a regular employee?
• Does the intern work closely under close supervision of existing staff?
• Is the intern not necessarily entitled to a job at the conclusion of the internship?
• Does the employer derive immediate advantage from the activities of the intern?
• Does the employer make clear to the intern, from the outset, that the internship is unpaid?

After an employer makes a final determination regarding the classification of the internship, it may be helpful to take some additional steps. Before hiring any interns, employers may want to consult legal counsel to draft a written agreement setting forth the goals, duties, and objectives of the internship program. The agreement should explicitly outline any compensation or academic credit that will be awarded. Employers should keep diligent records of the internship program, including time records of interns. If an employer has an existing internship program, it may want to hire legal counsel to conduct an audit of the program to determine compliance with the FLSA. Further, it may be helpful to train the supervising staff regarding the roles of interns. Ultimately, employers should be diligent in their creation and execution of internship programs to minimize liability.

PAWA increases OSHA protections to include state, county, municipal and U.S. government employees.  Moreover, PAWA increases whistleblower protections and improves OSHA reporting, inspection and enforcement. Specifically, PAWA increases coverage to include more of the 8.5 million federal, state, local government, and private sector employees that are currently outside of the Act’s protections.

PAWA expands whistleblower protections by including a number of procedural and administrative options that are unavailable under OSHA.  Significantly, PAWA authorizes private rights of action if an employer fails to comply with an order providing relief.  PAWA further allows complainants to move their cases to the next judicial stage if the appropriate administrative ruling body has not issued a decision in a timely manner.  The most significant change to procedure is the increase of the statute of limitations period from 30 days to 180 days for filing a complaint with the U.S. Department of Labor.  The longer filing period facilitates the filing of more retaliation cases previously foreclosed by the 30 day statute of limitations.

Moreover, PAWA increases the penalties for law breakers.  The bill authorizes felony charges for an employer’s repeated and willful violations of OSHA that result in a worker’s death or serious injury.   PAWA increases civil penalties and sets a minimum penalty of $50,000 for a worker’s death caused by a willful violation.

PAWA increases OSHA’s enforcement by mandating the investigation of all cases of death or serious incidents of injury of two or more employees.  To that end, PAWA includes provisions requiring employers to take measures to protect against the spoliation of evidence.

Overall, PAWA clarifies an employer’s duty to provide a safe worksite. It amends the General Duty Clause to include all workers on the site and clarifies employer responsibility to provide necessary safety equipment.

Employers should stay abreast of PAWA’s movement in Congress because if it is passed PAWA could significantly impact employers by increasing the breadth of OSHA’s application to employers that were never previously covered, increase civil penalties for violations, expand employee protections and rights, and impose heightened safety guidelines.

Employees benefit from handbooks because they learn company policies, what is expected of them and what they can expect from their employer, unique aspects of the employer that separate it from others in the industry, and depending on the company, its history.

Employers are also well-served by handbooks. Employers are able to communicate information directly to employees and announce and communicate workplace policies. Employers are also able to set forth equal opportunity employment and anti-discrimination policies, and aside from conveying this information, if an employee files a complaint with an agency such as the EEOC, the first question the agency will ask is whether the company has the appropriate policies.

Should all employers have a handbook? For a new or small business that is carefully managing its resources, it can sometimes feel like an added cost, but if the business is growing quickly or the number of employees is above ten, then it is likely that the benefits of even a simple handbook will outweigh the costs.

In recent months, the NLRB has been addressing employment policies such as social media polices, and many employers have been frustrated by these often critical rulings. Despite these pronouncements, employers should not become frustrated. Handbooks are an opportunity for employers to pass on valuable information to employees and can help shield a business from charges of discrimination or unfair treatment. Even if workplace policies are coming under greater scrutiny in certain quarters, the benefits of a handbook still overcome any hesitancy.

On March 13, 2013, Judge Liam O’Grady of the Eastern District of Virginia refused to enforce arbitration clauses in independent contractor agreements based on unconscionability. Winston v. Academi Training Center, Inc., Case No. 1:12-cv-00767-LO-TCB (Docket No. 54) (March 13, 2013).[i] In that case, the plaintiffs worked as firearms instructors as part of Academi’s contract to provide private security to the U.S. State Department. Plaintiffs sought to litigate claims under the False Claims Act (FCA) and state law for an alleged retaliatory firing resulting from alleged reporting of falsified records to the government. First, the court found that the agreements did not fully preserve the rights and remedies available under the FCA – and, therefore, the court would not require arbitration of the FCA claim – because the agreements precluded discovery altogether, and required plaintiffs to pay their own attorneys’ fees and costs no matter the outcome, whereas FCA claims require significant documentary proof and the FCA allows fee shifting. Second, the court found that it also would be unconscionable to enforce arbitration of the state law claims for the additional reason that the plaintiffs allegedly were rushed and pressured when presented with the arbitration agreements.

On April 3, 2013, Judge Susan Illston of the Northern District of California also refused to enforce arbitration clauses based on unconscionability in an action where the plaintiffs sought overtime compensation under the Fair Labor Standards Act (FLSA). Zaborowski v. MHN Government Services, Inc., Case No. 3:12-cv-05109-SI (Docket No. 68) (April 3, 2013). In that case, plaintiffs were engaged as independent contractors to provide counseling services for military service members and their families.  Under applicable California law, a court may refuse to enforce an arbitration clause only if it is both procedurally and substantively unconscionable. Here, the court found that the agreement was procedurally unconscionable because it was a “contract of adhesion,” that was not negotiated fairly since one party had considerably more bargaining power than the other. Perhaps most importantly, the clause was buried as paragraph 20 of 23, not highlighted or set-off in any way, did not require a separate signature, and the signature for the contract was on a different page, and therefore could have “surprise[d]” the plaintiffs. The court then found that the agreement was substantively unconscionable because: (1) it created a six-month limitations period in which to bring claims; (2) the plaintiff had to select an arbitrator from a pool of three selected by the contractor; (3) the plaintiffs would be subject to significant forum fees of $2,600; (4) the arbitration agreement allowed for fee shifting that would not be allowed under federal and state law; and (5) the provision excluded punitive damages. However, the court did not find provisions problematic that limited discovery, required the arbitrator to apply the law and required claims to be brought in San Francisco, California.

In contrast, on April 3, 2013, Judge Cacheris of the Eastern District of Virginia compelled arbitration of individual claims and dismissed the class claims in a putative class action brought by employees seeking unpaid wages under Delaware law. Boatright v. Aegis Defense Services, Inc., Case No. 1:13-cv-00091-JCC-IDD (Docket No. 23) (April 3, 2013). In that case, plaintiffs provided security at a U.S. Embassy. The employees argued that the agreements were substantively unconscionable because: (1) employer had the sole discretion to determine whether claims would be arbitrated; and (2) the arbitrator was required to treat the proceedings as confidential. Judge Cacheris found that, because both sides were subject to the same rules during arbitration and both sides were equally bound by the outcome of the arbitration, the agreement was not so one-sided as to be oppressive.  Judge Cacheris found that the confidentiality provision did not render the agreement unconscionable because nothing about that provision prevented plaintiffs or other claimants from obtaining relief.

While there is no one-size-fits-all arbitration clause that is guaranteed to be enforceable, there are two key points to consider. First, if a plaintiff cannot fairly pursue his claims before the arbitrator, courts likely will give that plaintiff an opportunity to do so in court. Contractors may be able to require employees and independent contractors to accept mandatory arbitration provisions in their contracts, and can set the rules to a certain degree, but those rules cannot prevent the employee or independent contractor from vindicating his or her rights. Where the rules apply equally to both sides and aim to streamline the process, rather than determine the outcome, courts are more likely to find the agreement to be substantively fair. Second, optics matter: arbitration clauses should be clearly visible and clearly understandable. Because the question of unconscionability turns on state law, the role of procedural unconscionability in the analysis will vary by jurisdiction. Nonetheless, where a plaintiff has been given an opportunity to read, acknowledge and agree to a clearly designated arbitration provision, that opportunity can only increase the likelihood that a court will compel arbitration if the plaintiff does not comply.

While these cases specifically related to government contractors, they are instructive as to the enforceability of arbitration agreements in general.

Georgia, along with a small minority of states, provides a “Parking Lot Law” permitting employees and invited guests, such as customers and clients, to carry licensed firearms onto an employer’s property so long as the firearm is locked out of sight in the individual’s privately owned vehicle.  O.C.G.A. § 16-11-135.  Although Georgia does not define “firearms” in this particular statute, other statutes define firearm to include any rifle, shotgun, pistol or similar device.  O.C.G.A. § 16-8-12(a)(6)(A)(iii).  Georgia’s Parking Lot Law also prohibits employers from conducting searches of employees’ automobiles or discriminating against employees for exercising their rights under the statute.

Georgia’s Parking Lot Law does not completely abrogate an employer’s authority to regulate gun control on its premises.  Specifically, an employer may conduct searches in a secure parking area restricted from general public access provided that any search is applicable to all vehicles and conducted on a uniform and frequent basis.  Additionally, nothing in the statute prohibits employers from regulating, or outright banning, possession of firearms outside of the individual’s privately owned car.

Employers should be alert to warning signs of workplace violence while still being respectful of permissible individual employee rights and complying with Georgia’s Parking Lot Law.  Employers should implement, and consistently apply, a zero tolerance policy for workplace violence requiring employees to report any threats or comments suggesting suspicious behavior, in addition to other complaint and grievance reporting policies.  Employers should also make their existing weapons policy clear prohibiting any firearms and other such weapons except as authorized by law.  In consistently applying these policies, employers should take appropriate disciplinary action if any employee violates any of them.  Recognizing these issues will help employers protect their workforce, their customers and client base.