Employment Law Observer

Starting July 1, 2024, New York City employers will be required to distribute a Workers' Bill of Rights to all their current employees and new hires on or before their first day of work.

On June 3, 2021, the U.S. Supreme Court issued its opinion in Van Buren v. U.S. addressing a long-standing circuit split on employee computer access limits under the Computer Fraud and Abuse Act (CFAA). For many years the federal courts struggled with and disagreed over how to interpret the CFAA provisions that impose criminal and civil liability on a person who "intentionally accesses a computer without authorization or exceeds authorized access." 18 U.S.C. §1030(a)(2). The phrase "exceeds authorized access" is defined by the CFAA as follows: "To access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. §1030(e)(6). Unlike the typical employment scenario, the Van Buren case involved a police officer who used his access to a law enforcement database to search a license plate in exchange for $5,000.00 that was offered to him as part of a planned FBI investigation. The police officer was charged with a felony violation of the CFAA based on the allegation that his license plate search violated the "exceeds authorized access" provision of the CFAA. 18 U.S.C. §1030(a)(2). Specifically, the government's case against the police officer was that he used his authorized access to the license plate database for "an improper purpose" that included "any personal use." Van Buren, p. 4, citing App. 17. After the police officer was convicted by a jury, he was sentenced to 18 months in prison. On appeal the Eleventh Circuit affirmed by holding that the police officer had violated the CFAA by his action in accessing the law enforcement database for an "inappropriate reason." Van Buren v. U.S., 940 F.3d 1192, 1208 (9th Cir. 2019).

Earlier this month, the National Labor Relations Board's (NLRB) General Counsel issued Memorandum GC-18-04 providing guidance on handbook rules in light of the Board’s Boeing Company decision. In Boeing, the Board reevaluated when a seemingly neutral work rule, handbook rule, or employment policy violates the rights of workers granted by Section 7 of the National Labor Relations Act (NLRA). In doing so, it adopted a new test balancing the negative impact a given rule may have on an employee’s ability to exercise his or her Section 7 rights versus the employer’s right to maintain a disciplined and productive workplace. It also laid out three categories of rules: those that are always lawful, those that are usually always unlawful, and those it depends-type rules falling into the middle category. The GC’s guidance sorts common workplace policies into these three buckets.

Over the last month, we have seen a number of significant restorations of status quo antes. These have come in the form of reverting to earlier precedent, regulations, or guidance. Without further ado, we present some of the more notable developments:

In light of the recent spotlight in entertainment, government, media, and the law regarding unlawful harassment in the workplace, the Illinois legislature has recently taken action to ensure local governments have a handle on the problem. On November 16, 2017, the General Assembly passed Public Act 100-0554, which amends the Illinois State Officials and Employees Ethics Act and the Illinois Human Rights Act. The law prohibits sexual harassment and requires various state government and local governments to implement sexual harassment-related policies.

Employers, another notice provision has taken effect in California. Beginning on July 1, 2017, employers with at least 25 employees must now provide written notice to new employees that explain the rights of victims of domestic violence, sexual assault, and stalking. More specifically, the required notice mandates employers notify new employees of their rights under Labor Code Sections 230 and 230.1. These sections detail the following points:

California employers know they must compensate any employee unused and vested vacation pay upon separation from employment. Once vacation is vested, the right to vacation pay cannot be forfeited. But what happens when vacation rights have not vested? The Court of Appeals recently decided this question in Minnick v. Automotive Creations, Inc.

At-will employment is the default rule in Wisconsin. Employers may terminate for any reason or no reason at all.  However, that relationship can be overridden by contract, in some cases inadvertently, through employee policies and other post-employment agreements. In a case that came as good news for employers, last week, the Wisconsin Court of Appeals affirmed that it would not read a policy as overriding the employment at-will relationship unless the policy evidenced an intent to do so.

Earlier this year, we notified you about the passage of the Defend Trade Secrets Act of 2016 (DTSA) and how it affects employers.  On August 8, 2016, a U. S. District Judge in the Southern District of Florida dismissed one of the first cases filed under the DTSA, M.C. Dean, Inc. v. City of Miami Beach, Florida, Case No. 16-CV-21731 (S.D. Fla.)