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Brian S. Kaplan, a partner at Kasowitz Benson Torres & Friedman, and Elisheva M. Hirshman, an associate with the firm, write that this term, the Supreme Court is expected to resolve a circuit split on the question of who qualifies as a supervisor. Employers and practitioners alike eagerly anticipate where the Supreme Court will draw the line on the level of supervisory activity needed to cause employers to be held vicariously liable under federal law for harassment.
Mitchell Boyarsky, a partner at Gibbons, and Peter J. Dugan, an associate at the firm, write that employers may hesitate to hire individuals with a criminal record, whether to mitigate the risk of liability for a "negligent hiring" claim or to minimize the opportunities for employee misconduct. However, New York State and the EEOC have both challenged the extent to which employers may consider criminal histories in the selection and retention of employees.
David Schwartz, a partner at Skadden, Arps, Slate, Meagher & Flom, writes: Social media use in the workplace catapulted onto the labor law scene in October 2010, when the NLRB filed a complaint against a non-union employer for discharging an employee who posted negative comments about her supervisor on Facebook. Though the case ultimately settled, it revealed the Board's expansive interpretation of employee social media rights and foreshadowed subsequent efforts to regulate social media activity in the workplace.
Erika C. Collins, a partner at Paul Hastings, reviews recent U.S. legislation regarding applicant privacy and the NLRB's social networking and employment policy guidelines; the state of social media and employment law in the EU, particularly France, the United Kingdom and Argentina; and recommendations for employers faced with complying with new laws governing the use of social media.