05/04/2012

Executive Briefing - Employment & Labor Law/Employee Benefits, May 2012

Executive Briefing is an electronic newsletter that focuses on emerging developments in employment, labor law and employee benefits.

Access the full PDF version of the Employment & Labor Law/Employee Benefits Alert: Executive Briefing, May 2012

Does the Computer Fraud and Abuse Act Help Employers Protect Electronic Information? Federal Courts Are Split
On April 10, 2012, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in U.S. v. Nosal narrowly interpreting the Computer Fraud and Abuse Act (CFAA). The CFAA makes it a violation to 1) access a protected computer without authorization, or 2) exceed authorized access. In Nosal, the court addressed whether an employee who violates his employer's work computer-use policy commits a federal crime under the CFAA. The court ultimately refused to interpret the CFAA this broadly, and instead held that only unauthorized access to a protected computer is a crime.

Employer and 401(k) Plans' Record-Keeper Breach Fiduciary Duties – Owe Plan Participants $37 Million
Recently, the U.S. District Court for the Western District of Missouri held that a national technologies corporation, ABB, Inc., and its 401(k) plans' record-keeper, Fidelity Investments, breached fiduciary duties owed to ABB's 401(k) plans. The court ordered ABB and Fidelity to pay nearly $37 million to plan participants as a result of the breach. This case holds important lessons for all employers with retirement plans.

EEOC Says Title VII Protects Transgender Workers
On April 23, 2012, the Equal Employment Opportunity Commission (EEOC) released a landmark decision which said that discrimination against transgender employees is prohibited by Title VII. This decision is consistent with federal court decisions which have found discrimination based on an individual not fitting the stereotypes for his/her sex constitutes illegal sex discrimination.

EEOC Seeks Reconsideration of Court Decision Requiring It To Change How It Handles Class Action Claims
On February 22, 2012, the U.S. Court of Appeals for the Eighth Circuit issued a ruling which imposes significant pre-litigation obligations upon the EEOC in the class action context. The ruling imposes upon the EEOC a requirement that the EEOC identify all potential class members before ever filing a lawsuit. It also expressly disapproved of the EEOC's current method of using the litigation discovery process to identify class members. Given the EEOC's present emphasis on bringing class action claims alleging systematic discrimination, the decision has potentially far-reaching implications for the EEOC's litigation strategy and conduct.

Other NLRB News
Check out recent news from the NLRB, including another delay in the posting requirement for the new NLRB poster.