Wal-Mart Stores Inc. would have to spend an additional $4.95 billion if it were to raise the minimum wage for its hourly employees in the United States to $15 per hour from the current $10 per hour, according to an estimate by the UC Berkeley Center for Labor Research, Reuters is reporting.

Study found that 1.1 million of the big retailer’s 1.5 million employees are paid hourly wages. An estimated 979,000 employees would get an increase if Wal-Mart went to $15 per hour.

Labor groups have been demanding a $15 minimum wage for the company’s workers, and the “Fight for Fifteen” movement has been a topic of discussion during the U.S. presidential campaign, reports Nandita Bose.

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A French labor court Tuesday awarded Jérôme Kerviel, the Société Générale SA rogue trader convicted in 2010 of bringing the bank to the brink of collapse, a total of €450,000 ($511,000) because he was fired without “real or serious cause,” reports The Wall Street Journal.

According to the report: “Société Générale ‘could not pretend it hadn’t long been aware of the unauthorized trades conducted by Mr. Kerviel,’ judges wrote in their ruling. The bank therefore can’t argue that Mr. Kerviel was at fault when it ‘previously tolerated similar practices,’ they added.”

In a previous trial, Kerviel was found guilty on charges of forgery, breach of trust and unauthorized computer use and sentenced to three years in prison. He was ordered to repay his former employer €4.9 billion.

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Employers are not exempt from the Occupational Safety and Health Administration’s reporting rule for on-the-job injuries linked to alcohol intoxication even though the injured employee’s consumption of alcoholic beverages took place off the job, reports Bradford T. Hammock of Jackson Lewis.

Amanda Edens, head of OSHA’s Technical Support and Emergency Management Directorate, outlined the interpretation in a later that was released April 18.

“According to Edens, OSHA health care professionals concluded the exception for self-medication does not apply because consuming alcohol ‘does not treat the disorder of alcoholism. Instead, drinking alcohol is a manifestation of the disorder,’ ” the article says.

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A discrimination lawsuit brought against high-powered Boston law firm Mintz Levin by one of its former attorneys can move forward after a decision by the state’s highest court, reports The Boston Globe.

“In overruling a lower court judge who had thrown out the discrimination claims, Supreme Judicial Court justices said evidence supporting the ex-associate’s allegations of sexism and double standards inside the politically connected firm is substantial enough to warrant a jury trial,” writes Dan Adams.

The court also ruled that employers are in some circumstances barred from retaliating against workers who search for, copy, and share with their attorneys confidential company documents that may help them prove discrimination claims. The decision could affect other employment cases.

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Practical Law will present a free webinar in which management attorney Christopher J. Collins of SheppardMullin, plaintiff’s attorney Kalpana Kotagal of Cohen, Milstein Sellers & Toll, and EEOC trial attorney Justin Mulaire discuss conciliation and intervention under the federal anti-discrimination statutes.

The event will be Thursday, June 9, beginning at 1 p.m. Eastern time.

The webinar will address obligations on the part of employers, charging parties and the EEOC in conciliating and litigating EEOC cases.

Presenters:
Christopher J. Collins, Partner, SheppardMullin Richter & Hampton LLP
Kalpana Kotagal, Partner, Cohen, Milstein, Sellers & Toll, PLLC
Justin Mulaire, Trial Attorney, US Equal Employment Opportunity Commission

CLE credit is available for Arizona, Calif ornia, Colorado, Georgia, Hawaii, Illinois, Indiana, Missouri, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Vermont, Washington. CLE credit is being sought for Minnesota, Oregon, Tennessee, Texas, Virginia. CLE credit can be self-applied for in Florida.

Register for the webinar.

Practical Law and the Wage & Hour Defense Institute (WHDI) will present a free, 75-minute webinar providing guidance on the U.S. Department of Labor’s final rule, updating the regulations governing white collar exemptions under the federal Fair Labor Standards Act (FLSA).

The webinar will be Wednesday, June 1, beginning at 1 p.m. EDT.

The rule, which takes effect Dec. 1, 2016, doubles the minimum weekly salary threshold required for the exempt classification of executive, administrative, professional, and computer professional employees. In addition, the new rule increases the minimum annual compensation and weekly salary requirements for exempt highly compensated employees (HCEs), and the special salary levels for employees in the motion picture industry and employees in American Samoa.

Moderator Paul Bittner of Ice Miller LLP (Columbus, OH), and speakers Susan N. Eisenberg of Cozen O’Connor (Miami) and Francis X. Neuner, Jr. of Spencer Fane (St. Louis), all members of the Wage & Hour Defense Institute, will discuss what employers must do now to ensure compliance with the final rule, including:

Counting bonuses and incentive payments toward satisfying the new minimum salary.

• Reclassifying exempt employees who no longer satisfy the salary threshold.
• Communicating reclassification decisions.
• Planning for scheduled adjustments to the salary threshold.
• Addressing pay increases and the effect on an employee’s exempt status.
• Evaluating the risk of improper classification.
• Understanding what the DOL’s final rule does not change.

A short Q&A session will follow.

Presenters:

• Paul Bittner, Partner, Ice Miller LLP (Columbus, OH)
• Susan N. Eisenberg, Member, Cozen O’Connor (Miami)
• Francis X. (Frank) Neuner, Jr., Partner, Spencer Fane (St. Louis)
• Suzanne K. Brown, Senior Legal Editor, Practical Law Labor & Employment (Moderator)

CLE credit is available for: Arizona, California, Colorado, Georgia, Hawaii, Illinois, Indiana, Missouri, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Vermont, Washington. CLE credit is being sought for: Minnesota, Oregon, Tennessee, Texas, Virginia CLE credit can be self-applied for in: Florida

Register for the webinar.

As a result of changes to regulations that define which white collar workers are exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), millions of workers will lose their current FLSA-exempt status on Dec. 1, 2016, reports Ropes & Gray LLP.

“The hardest hit industries are likely to be education, retail, health services, leisure/hospitality, and business and professional services. Before the Final Rule goes into effect, employers should assess which employees will be affected, and how the employer will want to respond. One approach would be to raise the salaries/compensation of these employees to meet the new salary/compensation thresholds,” the firm writes. “Following this path may impose not only direct costs, but also indirect costs by creating pressure to raise salaries for other employees higher up on the organizational chart, or causing disgruntlement for those employees if the salary differential is compressed.”

Or, a company could reclassify these employees as nonexempt and pay them overtime in accordance with the FLSA. With this approach, employers could limit hours of nonexempt employees to 40 per week or reduce the employees’ hourly rate in light of their expected future overtime earnings, according to the firm’s alert.

Read the article.

Masimo Corp. founder and CEO Joe Kiani

The top 500 chief executive officers in American companies earned 340 times the average worker’s wage last year, taking home $12.4m on average, according to an analysis by the AFL-CIO, reports The Guardian.

The union’s analysis found that the pay of executives leading the S&P 500 index of top companies actually dipped last year. The figure in 2014 for the same group was 373 times more than their workers, earning on average $13.5m.

“The marginal drop in pay comes despite some eye-watering payouts for the three highest-paid CEOs – Masimo Corporation’s Joe Kiani, Timothy Walbert of Horizon Pharma and Gamco Investors’ Mario Gabelli – who took home nearly $3bn between them, according to the AFL-CIO,” the Guardian story says.

The average production worker who does not hold a supervisory role,earned about $36,900 a year in 2015.

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The lawyer who struck a $100 million deal with Uber Technologies Inc. is being accused of greed by some of the drivers covered by the accord who want her bumped, reports Bloomberg News.

“She has single-handedly stuck a knife in the back of every Uber driver in the country,” Hunter Shkolnik, a New York lawyer who’s pursuing his own cases against the ride-share service, said Friday in a phone interview with Bloomberg. “The entire class was thrown under the bus and backed over.”

Shkolnik asked the San Francisco federal judge who presides over the class-action settlement to remove Shannon Liss-Riordan as lead attorney. He says she sold out her clients by accepting a payout for California and Massachusetts drivers that’s less than 10 percent of the value of their claims “while she walks away with $25 million.”

Liss-Jordan labeled the claims as “uninformed,” “untrue and malicious.”

Read the article.

Image by NY Photographic

The 9th U.S. Circuit Court of Appeals ruled in Ocean Beauty Seafoods v. Pacific Seafood Acquisition Company that the doctrine of equitable extension can be used to tack on a non-compete period to an employment agreement after the original period had run, according to an article by Michael Arnold and Robert Sheridan of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

They write that the case illustrates what can happen when: “employee disregards a non-compete and joins a competitor; former company calls foul and initiates a lawsuit; parties fight it out, but by the time litigation has run its course, the non-compete period in the underlying contract has expired.”

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A Dallas appellate court considered whether California law governed contract and tort claims against California-based former employees who signed employment agreements containing a choice-of-law clause stating that Texas substantive law would apply, according to a report by Neil R. Burger in Carrington Coleman Sloman & Blumenthal, L.L.P.’s Sua Sponte blog.

“Applying the applicable provisions of the Restatement (2d) of Conflicts, the Dallas Court of Appeals affirmed the trial court’s ruling that California law would apply to the claims for breach of the non-competition provision and related tort claims, because of California’s more significant relationship to the dispute and because application of Texas law would contravene a fundamental policy of California,” he wrote.

The case is Merritt, Hawkins & Associates, LLC v. Caporicci.

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The U.S. Supreme Court has rejected a challenge by business groups to Seattle’s law raising its minimum wage to $15 an hour, a move echoed by other locales, in a case focusing on how the ordinance affected local franchises like McDonald’s, reports Reuters.

The high court action left intact a lower court ruling backing the measure.

Reuters says supporters of the wage raise see the ruling as a defeat for “the big business lobby” that has taken aim at minimum wage hikes.

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From two different courts in two different states on two very different claims come the same concept: an agreement to arbitrate may be binding even without a signed contract, according to a report by Stan Martin on the Commonsense Construction Law website.

“One comes via an unsigned law firm partnership agreement, and the other via an agreement placed on the wrapping of a bundle of roofing shingles, held to be binding on the property owner who hired the contractor who engaged, in turn, the subcontractor purchasing the shingles,” he writes.

“These cases serve as a reminder that (1) a person or company can be bound by a contract without signing that contract, based on other actions, and (2) if that (unsigned) contract calls for arbitration, the person/company is bound to arbitrate disputes that arise under the contract.”

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A fundamental principle of contract law is that a written contract is an agreement in writing that serves as proof of the parties’ obligations, writes Virginia Whitehill Guldi of Zuckerman Spaeder LLP. What happens, however, when the parties forget some of the niceties of formalizing a written contract?

For one answer, she offers the recent decision in the case of Shank v. Fiserv, Inc., in which the Eastern District of Pennsylvania addressed Fiserv’s motion to dismiss and compel arbitration at the outset of the case.

In that case, employee Shank had been dismissed after returning from a medical leave. The company cited a reorganization, but the plaintiff claimed proffered reason was pretextual and that she had been fired in violation of various federal laws, including the Americans with Disabilities Act, the Family Medical Leave Act, and Title VII.

“Fiserv sought to dismiss the case and force arbitration, citing a ‘Mutual Agreement to Arbitrate Claims’ that Ms. Shank had signed when she was hired and that would have contractually obligated her to arbitrate her claims. However, Fiserv’s argument had a flaw, said Ms. Shank, because it did not sign the agreement,” Guldi wrote.

The court agreed with the plaintiff.

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A physician signed a non-compete covenant, agreed to be enjoined if he breached, and allegedly did breach. But when his former employer asked a Providence, Rhode Island Superior Court judge to enter an injunction, the judge refused to prevent patients from being treated by a doctor of their own choosing, reports Paul E. Freehling of Seyfarth Shaw on the firm’s Trading Secrets blog.

The case involved a physician employed by a provider of health care services principally to nursing home residents. He signed an employment agreement with a non-competition covenant but several years late, he left the employer but continued treating its clients.  The company sued him and sought an order preventing him from competing with the provider.  The judge ruled, however, that the requested order would violate Rhode Island public policy.

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An office of Economic Policy Report published in March 2016, entitled “Non-Compete Contracts: Economic Effects and Policy Implications,” estimates that 18% of all workers, or nearly 30 million people, are covered by non-compete agreements, reports Barry J. Waters on the website of Murtha Cullina. The Treasury Department is concerned that the prevalence of these agreements raises important questions about worker welfare, job mobility, business dynamics, and economic growth.

The article reports on the conclusions reached by the Treasury Department.

And it offers five take-aways for lawyers and employers.

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In previous articles on employee separation agreements, Jonathan Orleans of Pullman & Comley, LLC discussed provisions that must – under federal law, specifically the Older Workers Benefit Protection Act – be included in employee separation agreements if the employee’s release of potential claims under the Age Discrimination in Employment Act is to be valid.

“And as I’ve pointed out previously, even if the employee is under 40 (and therefore isn’t protected by ADEA), it’s still wise to write the agreement in clear, understandable language and to have the employee confirm that he or she is entering into it knowingly and voluntarily,” he writes.

In a new article, he discusses some other provisions of employee separation agreements that his clients often ask about.

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A recently decided case from an Ohio Court of Appeals found that an employee handbook may create a contract as to the terms of employment, including an employee’s rate of pay and insurance coverage, absent a clear disclaimer to the contrary, according to an article by Michael C. Griffaton of Vorys, Sater, Seymour and Pease LLP.

“The Court explained that ’employment manuals may constitute binding contracts between employees and employers provided all necessary elements of an implied contract are present.’ Thus, an employee claiming the existence of an implied contract must prove offer, acceptance, consideration, and mutual assent,” he wrote.

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In a recent case out of California, Yeotis v. Warner Pacific Insurance Services Inc., No. B245770, the agreement in question was found to be unconscionable in places, but that didn’t doom the arbitration provision contained within it, writes Stacey Lantagne in ContractsProf Blog.

The court concluded that the contract was an adhesion contract, because the plaintiff was required to sign it in order to keep her job. There was, therefore, some procedural unconscionability attached to the formation of the contract,” she explains. “Additionally, there was some substantive unconscionability in the contract’s provisions that gave the court pause.”

Read the article.

Opening arguments kicked off Thursday in a long-awaited National Labor Relations Board case that could, for the first time ever, put McDonald’s on the hook for labor violations committed by the company’s franchised restaurants, reports International Business Times.

The case could determine whether McDonald’s is a so-called joint employer of workers at its franchisees, the independently-owned businesses that make up 90 percent of the company’s roughly 13,000 stores in the U.S and employ the vast majority of its 420,000 workers, explains reporter Cole Stangler.

“In addition to making the company more liable for labor violations, a decision from the NLRB that McDonald’s is a joint employer would open the door for a union formed by workers at franchised stores to bring the parent company to the bargaining table,” according to the report. “Such a ruling could also set a precedent for other fast-food franchises, according to industry observers and legal experts.”

Read the article.