The Employment Law AUTHORITY Today’s Hot Topics in Labor & Employment Law July/August 2010 U.S. SUPREME COURT TACKLES ARBITRATION CASE THIS ISSUE Finds Question Of Enforceability Must Be Decided By Arbitrator O Federal Contractors. Answers to the most common questions regarding the On June 21, with Justice Antonin trate must be evaluated by the arbitrator, new posting requirement. Scalia writing for a 5-4 majority, the U.S. not a court. Rent-A-Center, West, Inc. v. page 2 Supreme Court issued an important de- Jackson, No. 09–497, U.S. Supreme O State Round-Up. Learn about the lat- cision for employers that are utilizing or Court (June 21, 2010). are considering adopting arbitration est employment law news in your state. Factual Background page 3 agreements. The Court addressed the en- forceability of an arbitration agreement Antonio Jackson was employed by O Washington Watch. Hal Coxson dis- (included as part of an employment Rent-A-Center, West, Inc. At the time cusses the recent changes at the NLRB and their potential effect on the labor contract), which stated that the arbitrator of hiring, he signed an agreement, en- movement. determines the enforceability of the titled “Mutual Agreement to Arbitrate page 4 contract. According to the majority, Claims,” as a condition of his employ- because the employee in this case chal- ment. A section entitled “Claims Cov- O Family & Medical Leave. More work- lenged his employment contract as a ered By The Agreement” stated that all ers entitled to leave to care for a child. whole, rather than specifically chal- “past, present or future” disputes aris- page 6 lenging the provision in the agreement ing out of Jackson’s employment with O Wage & Hour. Court holds pharma- granting the arbitrator the authority to Rent-A-Center must be submitted to ar- ceutical sales reps were misclassified determine enforceability (the “delega- bitration. Another section, designated as exempt. tion provision”), the agreement to arbi- Please see “ARBITRATION” on page 7 page 8 XXXXX AND MUCH MORE AND PORTLAND MAKES 40! OFFICES OF OGLETREE, DEAKINS, Ogletree Deakins Opens Office In Pacific Northwest NASH, SMOAK & STEWART, P.C. Continuing its aggressive growth complex, multiple plaintiff, and class Atlanta Memphis strategy, Ogletree Deakins opened its action litigation and also has substantial Austin Miami newest office in Portland, Oregon in experience in enforcing and defending Birmingham Minneapolis July. This is the fifth office the firm has noncompetition agreements. Bloomfield Hills Morristown opened this year (the other new offices Lively joins Ogletree Deakins from Boston Nashville are in Las Vegas, Denver, Orange County the Portland office of Lane Powell, Charleston New Orleans and Minneapolis), giving Ogletree where she chaired the firm’s Labor and Charlotte Orange County Deakins 40 offices nationwide. Employment group. In her practice, Chicago Philadelphia This represents the firm’s first foray Lively defends employers from claims Cleveland Phoenix into the Pacific Northwest. According of harassment, discrimination, retalia- Columbia Pittsburgh to Managing Shareholder Kim Ebert, tion, wrongful discharge, and wage and Dallas Portland “We have long felt the need to be in this hour violations. She has extensive liti- Denver Raleigh region of the country, but had to identify gation experience having successfully Greensboro San Antonio the right lawyers. The firm now can truly tried more than 40 jury trials in multiple Greenville San Francisco provide our clients with first class ser- states and jurisdictions. Houston St. Louis vice coast to coast.” Both lawyers have been listed in Indianapolis St. Thomas The “right lawyers” are David Symes Chambers USA’s “America’s Leading Jackson Tampa and Leah Livey, both of whom join Lawyers for Business” in the Labor & Las Vegas Torrance Ogletree Deakins as shareholders. Employment category the last three Los Angeles Tucson Symes, formerly with Perkins Coie in years. “We are extremely fortunate to Kansas City Washington, D.C. Portland, represents employers in litiga- have two accomplished attorneys as part www.ogletreedeakins.com tion and arbitration across a variety of of our firm and leading our efforts in industries. He has successfully handled the Pacific Northwest,” Ebert said. AGENCY ACTION JULY/AUGUST 2010 EXECUTIVE ORDER 13496 (EMPLOYEE POSTING RULE) UPDATE Answers To Employers’ Common Questions Executive Order 13496’s employee 52.222-99 or -40, and you determine tice contained on the Office of Labor- notice posting requirement became ef- that you are covered by FAR’s provi- Management Standards’ website. fective June 21, 2010. While no clause sions, the notice must be posted where Q: May I post the notice electroni- implementing the requirement has employees covered by the National cally instead of posting it physically been finalized by the Federal Acquisi- Labor Relations Act (NLRA) “engage in in my workplace? tion Regulation (FAR) Councils, an contract-related activity.” Employees A: No. Electronic posting cannot interim clause has been issued. Below not covered by the NLRA include agri- be used as a substitute for physical are common questions regarding this cultural laborers, domestic workers, in- posting. new requirement for federal contractors dependent contractors, supervisors, and Q: Are there any exemptions to hav- and subcontractors. employees who work for employers ing to post the notice? Q: Where do I have to physically subject to the Railway Labor Act (RLA). A: Yes. The posting requirements do post the notice in my building? Whether or not you are currently not apply to: (1) federal contracts en- A: When and if you receive a con- “non-union” does not matter in deter- tered into before June 21; (2) contracts tract or subcontract containing FAR mining whether the employee notice entered into after June 21 that do not must be posted; the trigger for posting include FAR 52.222-99 or -40; (3) con- is having a covered federal contract or tracts below $100,000 or subcontracts subcontract. below $10,000 which are not neces- Q: Must I post the employee notice sary to the performance of the prime electronically? contract; (4) contracts/subcontracts for A: The final rule requires that you work exclusively performed outside of physically post the employee notice the United States; (5) grants or loans © 2010 and post it electronically if you “cus- (such as Medicare and Medicaid) that tomarily” electronically post notices constitute “federal financial assis- Publisher regarding the terms and conditions of tance”; (6) states or political subdivi- Joseph L. Beachboard employment (e.g., your employee hand- sions; and (7) companies subject to Managing Editor book is online, or you customarily cor- the RLA. Other exemptions also may Stephanie A. Henry respond with employees regarding apply. work issues via email). If you do post For additional information, visit our Reproduction the notice electronically, you must post website at www.ogletreedeakins.com/ This is a copyright publication. a “prominent” link to the employee no- publications. No part of this bimonthly publica- tion may be reproduced or transmit- XXXXX ted in any form or by any means, electronic or mechanical, including VETS-100 REPORTING MAY COST CONTRACTORS photocopy, recording, or any infor- Court Finds Liability Under False Claims Act mation storage and retrieval system, without written permission. A federal appellate court recently ruled that a government contractor could be held liable under the False Claims Act (FCA) for knowingly or recklessly failing Disclaimer to comply with its VETS-100 reporting obligations. The practical significance of The articles contained in this pub- this decision is that if employees of government contractors submit inaccurate lication have been abridged from VETS-100 reports or neglect to file the reports altogether, liability may exist laws, court decisions, and adminis- under the FCA. Kirk v. Schindler Elevator Corp., No. 09-1678-cv, Second Circuit trative rulings and should not be Court of Appeals (April 6, 2010). construed or relied upon as legal Daniel Kirk, a Vietnam veteran, worked as a management-level employee for a advice. If you have questions con- predecessor of Schindler Elevator Corp. When Schindler merged with Kirk’s em- cerning particular situations and specific legal issues, please contact ployer, the reorganization left Kirk in a non-managerial position, from which he your Ogletree Deakins attorney. This promptly resigned. Kirk then filed a lawsuit in federal court, claiming that Schindler publication can be considered ad- Elevator defrauded the government by failing to comply with the Vietnam Era vertising under applicable laws. Veterans Readjustment Assistance Act (VEVRAA). VEVRAA requires that federal contractors submit VETS-100 reports, which provide information on the number of Additional Information veterans employed by the contractor. To request further information The Second Circuit Court of Appeals found that the facts as alleged by Kirk or to comment on an article, please showed that Schindler Elevator had no mechanism in place to identify veterans call Stephanie Henry at (310) 217- 0130. For additional copies or covered by VEVRAA. Thus, the company had knowingly supplied a false record, address changes, contact Marilu the court held, because it had nothing upon which to base the information in its Oliver at (404) 870-1755. VETS-100 reports. As a result, the court reinstated Kirk’s lawsuit . For a full analysis of this case, visit www.ogletreedeakins.com/publications. 2 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. STATE ROUND-UP JULY/AUGUST 2010 Ogletree Deakins State Office Round-Up ALABAMA INDIANA* NORTH CAROLINA The Eleventh Circuit The Seventh Circuit The Fourth Circuit Court Court of Appeals re- Court of Appeals recent- of Appeals recently held cently dismissed a law- ly held that an Indiana that an employer must suit brought by a former manager health care provider’s policy of com- pay severance benefits to its former for the Tuscaloosa Housing Author- plying with patients’ wishes to be president and CEO.