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  • Employment Litigation in Review #7

    ODEP Develops Database with 3,000 Ready-for-Hire Candidates Who Have Disabilities

    On December 5, 2012, the Office of Disability Employment Policy (ODEP) announced its new Workforce Recruitment Program. The program includes the creation of a database containing nearly 3,000 ready-for-hire candidates who have disabilities. According to its news release,

    [t]he database contains profiles of postsecondary students and recent graduates with disabilities, including veterans, representing a wide variety of academic backgrounds and degree levels. Candidates who are seeking summer employment as well as recent graduates looking for regular full-time positions have been interviewed and pre-screened by federal recruiters.

    If you are a private sector employer and are interested in accessing the database, you can do so through ODEP’s Employer Assistance and Resource Network (EARN).

    District Court for District of Columbia Holds Communications Between Employees May Be Protected Under the Attorney-Client Privilege 

    FTC v. Boehringer Ingelheim Pharms., Inc., 2012 U.S. Dist. LEXIS 138854 (D.D.C. Sept. 27, 2012)

    Generally, attorney-client privilege protects communications between attorneys and their clients. Often, disputes arise when the communication involves the use of emails, especially where a communication reflects a request for legal advice or conveys requests from attorneys for information to be used in settlement negotiations. In FTC v. Boehringer Ingelheim Pharms., Inc., the District Court for the District of Columbia addressed whether those communications would be protected under the attorney-client privilege.

    In the case, the Defendant asserted attorney-client privilege over a particular document because it included forwarded email requests by in-house counsel for information that would help inform the Defendant in drafting its co-promotion agreement with one of its employees. The Plaintiff took issue with the Defendant’s assertion, arguing that the privilege does not protect communication “between two non-lawyers, and thus cannot be considered protected by the attorney-client privilege.”

    In ruling on whether the communications should be protected under the attorney-client privilege, the Court found that

    …communications among employees of a client are still afforded the protection of the privilege, so long as the communications concern legal advice sought or received that was intended to be confidential. See, e.g., Long v. Anderson Univ., 204 F.R.D. 129 (S.D. Ind. 2001) (e-mails between one university employee and another regarding communications with counsel were privileged); Johnson v. Sea-Land Serv. Inc., No. 99-civ-9161, 2001 U.S. Dist. LEXIS 11447, 2001 WL 897185, at *2 (S.D.N.Y. Aug. 9, 2001) (holding that the privilege ‘affords confidentiality to communications among clients, their attorneys, and the agents of both, for the purpose of seeking and rendering an opinion on law or legal services, or assisting in some legal proceeding, so long as the communications were intended  to be, and were in fact, kept confidential.’).

    Therefore, any emails conveying a request for, or the provision of, legal advice are protected by the attorney-client privilege, which includes any email chain containing “an entire string of e-mails being sent back and forth, [so long as] the correspondence addresses legal strategies, proffers advice, or potential avenues for the settlement.” 

    Bank to Pay over $1,000,000 for Misclassifying Employees under Overtime Laws

    We have covered the perils of misclassifying your employees multiple times on our blog. Here is another example of why employers should be mindful of whom they categorize as exempt under federal overtime laws.

    In a recent settlement between the US Department of Labor (“DOL”) and First Republic Bank (the “Bank”), the Bank was required to pay $1,009,643.93 in overtime back wages for 392 First Republic Bank employees located in California, Connecticut, Massachusetts, New York, and Oregon.

    In general, the Fair Labor Standards Act (“FLSA”) provides an exemption from both minimum wage and overtime pay requirements for certain individuals employed in executive, administrative, professional, and outside sales positions.  To qualify for the exemption, an employee’s job duties must meet certain criteria and they must be paid a salary of not less than $445 per week.  Moreover, an employee’s job title will not determine exempt status; rather, the duties actually performed by the employee must meet the requirements under federal laws and regulations.

    According to a November 27, 2012 DOL news release, investigators for the DOL found that the Bank “failed to consider the FLSA’s criteria that allow certain administrative and professional employees to be exempt from receiving overtime pay.” The investigation also revealed that the Bank failed to pay administrative and professional employees time-and-a-half their regular hourly rate when they worked over 40 hours, and “failed to include bonus payments in nonexempt employees’ regular rates of pay when computing overtime compensation.” Furthermore, record-keeping violations resulted because the Bank misclassified its employees and failed to track the employees’ hours.

    Should you have any questions about any of the above employment updates, please contact Tom Wassel via email at twassel@cullenanddykman.com or his direct telephone line at (516) 357-3868.