February 2013
InsIde
Ohio Supreme Court Reverses Decision on
Surviving Merger Entity’s Ability to Enforce
Noncompetition Agreements ..............................1
“Sweet” Decision for California Employers:
Court Approves Time Rounding in Case
Against See’s Candy ............................................1
Union Has No Duty to Disavow Threatening
Statements Made by Its Members on its
Facebook Wall During a Strike ............................. 2
NLRB’s Office of the General Counsel Provides
Further Guidance on At-Will Employment
Acknowledgements in Employee Handbooks .....3
Even When Unions’ Information Requests Are
Irrelevant, Companies Commit Unfair Labor
Practices by Failing to Object in a Timely
Manner ................................................................ 3
Newark, New Jersey Joins Growing Number
of States and Cities Restricting the Use of
Applicants’ Criminal History ................................. 4
Employers May Offer Unpaid Leave to Exempt
Employees in Only Full-Day Increments ..............5
California Supreme Court Upholds Laws
Protecting Union Picketing ..................................6
California Supreme Court Limits
Remedies in Mixed-Motive Cases .......................6
Attorney Contacts in the Labor and
Employment Group .............................................7
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Meagher & Flom LLP and its affiliates for educational
and informational purposes only and is not intended and
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(continued on page 6)
employment flash
Ohio Supreme Court Reverses Decision on
Surviving Merger Entity’s Ability to Enforce
Noncompetition Agreements
Updating a case reviewed in t he September 2012 Employment Flash, the
Ohio Supreme Court has r econsidered its decision in Acordia of Ohio L.L.C.
v. Fishel, 133 Ohio St. 3d 345, 2012-Ohio-2297, 978 N.E.2d 814 (2012),
which held that a survivi ng merger entity cannot enforce noncompetition
agreements assu med in connection with a merger, unless the ag reements
explicitly state that they can be assig ned or carried over to a successor.
On the employer’s motion for reconsideration, the court ru led in a 6-1
decision in Acordia of Ohio LLC v. Fishel, 133 Ohio St. 3d 356, 2012-
Ohio-4648, 978 N.E.2d 823 (2012), that its earlier opinion was errone-
ous, holding that a sur viving merger entity can enforce noncompetition
agreements assu med in connection with a merger, regardless of whether
the agreements explicitly state t hat they can be assumed. The Acordia
court reasoned t hat, while the merged entity, which is a party to the
agreement, ceased t o exist as a separate business entity, the merged
entity does become a par t of the surviving entity following the merger;
accordingly, the surviv ing entity can enforce the agreements as if it ha d
stepped into the shoes of the me rged entity.
“Sweet” Decision for California Employers:
Court Approves Time Rounding in Case Against
See’s Candy
When employers are devising thei r record-keeping policies for non-ex-
empt employees who must clock in and clock out, they are faced with t he
issue of how to record and pay for small increments of ti me. For example,
should an employer pay an employee for eight hours worked if the employee
falls two minutes shor t and is at 7.966667 hours worked? Under federal
law, employers long have been utilizing time roundi ng policies, pursuant
to a regulation under t he Fair Labor Standa rds Act (FLSA) that approves of
rounding time to the nearest ve minutes, 1/10th of an hour or 1/4 of an hour,
“provided that it is used in such a ma nner that it will not result, over a period
of time, in failure to compe nsate the employees properly for all the time they
have actually worked.” 29 C.F.R. § 785.48(b). However, until recently, it has
been an open issue as to whet her California law permits any ti me rounding.
Now, a California appellate court ha s provided more certainty to Califor-
nia employers. In See’s Candy Shops, Inc. v. Superior Cour t of San Diego
County, 210 Cal. App. 4th 889 (2012), See’s Candy maintained a policy that
rounded employees’ time to the nearest 1/10th of an hour at the three-mi nute
mark. For example, See’s Candy’s time recordi ng system recorded 8:00
a.m. for employees clocking in at 7:58 a.m. and 8:02 a.m. The See’s Candy
plaintiff brought a class act ion against the company, claiming, among other
wage and hour violations, that the compa ny’s rounding practice resulted
in unpaid time. The plai ntiff argued that, while the company could use a
