Nearly four months after an appeals court ruled that recess appointments to the National Labor Relations Board (NLRB) made in 2012 were invalid, another appellate court has ruled a previous recess appointment unconstitutional.

The U.S. 3rd Circuit Court of Appeals ruled May 16 in NLRB v. New Vista Nursing & Rehab. that President Barack Obama’s 2010 recess appointment of Craig Becker to the NLRB was invalid. Becker, a Democrat, served on the Board from April 5, 2010, through January 3, 2012.

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On May 16, President Barack Obama’s nominees to the National Labor Relations Board (NLRB) went before the Senate Health, Education, Labor and Pensions Committee, and the two nominees who were selected as recess appointees in 2012 failed to impress the committee’s ranking member, Senator Lamar Alexander.

Alexander (R-Tennessee) said he would oppose the nominations of Democrats Sharon Block and Richard Griffin because “they continued to decide cases after the federal appellate court unanimously decided they were unconstitutionally appointed.”

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A wave of strikes by fast-food and other low-wage workers continues to spread in major cities around the country as employees take action to increase their pay and gain other workplace rights and benefits. Strikes have taken place in New York City, Chicago, St. Louis, Detroit, and Milwaukee as the movement appears to be gaining strength.

The workers are not unionized and work in jobs traditionally not targeted by labor unions because the fast-food industry often relies on teen workers holding part-time and seasonal jobs. Since the recession, however, more adults with families have turned to jobs in the fast-food industry.

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Although noncompetition agreements remain unenforceable under state law, a new law confirms that Oklahoma employers may enforce agreements prohibiting former employees from soliciting a company’s employees to leave their jobs to work for another employer.

For some time, Oklahoma employers have been able to contractually prohibit former employees from soliciting workers for a reasonable period of time, but Senate Bill 1031 confirms and reinforces such prohibitions by codifying that a nonsolicitation provision is not an unlawful restraint of trade. Under the law, employers may have contracts that prohibit employees or independent contractors from directly or indirectly soliciting employees or contractors to become employees for another organization.

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by Sophie E. Zdatny

House Bill 99, titled “an act relating to equal pay,” has cleared both chambers of the Vermont Legislature and is set to be signed into law by Governor Peter Shumlin on Tuesday, May 14.

The final bill amends Vermont’s Fair Employment Practices Act to provide that an employer may pay different wage rates to employees of different sexes only when the differential wages are based on (1) a seniority system, (2) a merit system, (3) a system in which earnings are based on quality or quantity of production, or (4) a bona fide factor other than sex. Employers now will be required to show that any wage differential is based on a factor that “does not perpetuate a sex-based differential in compensation, is job-related with respect to the position in question, and is based upon a legitimate business consideration.”

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by Mike Maslanka

On May 2, Governor Rick Perry signed the newly enacted Texas Uniform Trade Secrets Act, which takes effect September 1. Texas is the 48th state to pass the law, proving that while Texas may not always be first, it is never last!

The law, put simply, is a big deal. It wipes away, with a stroke of the governor’s signature, all existing case law regarding misappropriation of trade secrets. So what will be a trade secret under the new law? “Information, including a formula, pattern, compilation, program, device, method, technique, process, financial data, or list of potential customers or suppliers.”

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Probusiness groups are cheering a new ruling from the U.S. Court of Appeals for the District of Columbia Circuit that represents another blow to the National Labor Relations Board (NLRB). The appeals court, which issued another ruling against the NLRB in January, ruled on May 7 that the Board exceeded its authority in its effort to require employers to post a notice of employee rights under the National Labor Relations Act.

The NLRB issued the rule in 2011, but it was never implemented because of court challenges. Had it gone into effect, all employers under NLRB jurisdiction—including nonunion employers—would have been required to post an 11-by-17-inch poster explaining that employees have the right to act together to improve wages and working conditions; to form, join, and assist a union; to bargain collectively with their employer; and to refrain from any of those activities.

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by Darryl J. Lee

Utah’s Internet Employment Privacy Act (IEPA) goes into effect May 14, making Utah the latest state to prohibit employers from requiring employees or job applicants to disclose their passwords or user names for personal social media accounts. Similar legislation has been enacted in California, Delaware, Illinois, Maryland, Michigan, and New Jersey.

The law provides that employers may not: read more…

The Colorado Court of Appeals has upheld an employee’s firing for off-duty marijuana use, despite medical and recreational use of the drug being allowed under state law.

A quadriplegic employee who used marijuana under the state’s medical marijuana amendment filed a lawsuit after he tested positive for drugs in violation of company policy and was fired. He claimed his employer violated the Colorado’s lawful off-duty activity statute, which prohibits termination for any “lawful activity” conducted off an employer’s premises during nonworking hours.

In its April 25th ruling, the appeals court held that the employee’s use of marijuana wasn’t lawful activity because “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.” Since marijuana use is illegal under federal law, the employer didn’t violate the law in terminating the employee.

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by Rebecca Hudson

Colorado’s new civil union law goes into effect May 1, meaning Colorado joins eight other states that permit civil unions or have similar laws that recognize them. Nine other states and Washington, D.C., allow same-sex marriage.

Under the Colorado Civil Union Act, the state will recognize civil unions entered into by same-sex and opposite-sex couples, granting rights afforded to traditionally married couples. But unlike a marriage, a civil union doesn’t provide federal protections or responsibilities. For example, under the Defense of Marriage Act (DOMA), federal programs define marriage as “between one man and one woman.” If a Colorado employer remains governed by federal law, any benefits it offers won’t be extended to partners in a civil union.

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