The U. S. Supreme Court unanimously ruled on April 29 that courts can review whether the EEOC has satisfied its obligation under Title VII to conciliate before running to court. Title VII dictates that when the EEOC believes that an employer has discriminated against its employees, it must attempt to “eliminate such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” However, if the EEOC cannot obtain a conciliation agreement that “is acceptable to the Commission,” the EEOC may then bring a lawsuit. Up to now, there has been some debate as to what the EEOC needs to do to prove that it has cleared the conciliation hurdle before sprinting into litigation. In one of the most important labor and employment decisions of this term, the Court held that courts have limited authority to review the EEOC’s conciliation efforts, adopting a middle-ground position that “respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the lead.” Mach Mining LLC v. EEOC, U.S., No. 13-1019, 4/29/15.
Jill L. Rosenberg
Jill Rosenberg, a New York employment law partner, is a nationally recognized employment litigator and counselor. Ms. Rosenberg has significant experience defending and advising employers in discrimination, sexual harassment, whistleblowing, wrongful discharge, affirmative action, wage-and-hour and traditional labor matters. She handles complex individual cases, as well as class actions and systemic government investigations. She represents a broad range of companies, including employers in the securities industry, banks and financial institutions, accounting firms, law firms, and employers in the food service and publishing industries. Ms. Rosenberg also has particular expertise in the representation of nonprofit entities, including colleges, universities, hospitals, foundations and cultural institutions.
Ms. Rosenberg’s notable engagements include:
- Employment Arbitrations for Securities Industry Employers. Ms. Rosenberg has tried to decision more than 30 employment arbitrations before FINRA (formerly NASD and NYSE), JAMS and AAA involving claims for bonuses and other forms of compensation, wrongful termination, sexual harassment, discrimination and whistleblowing/retaliation. She has also litigated important issues in the field of arbitration, including the permissibility of mandatory arbitration, the scope of judicial review of arbitration awards and the availability of certain remedies.
- Higher Education Litigation. Ms. Rosenberg was lead trial counsel representing a university in a federal court jury trial involving allegations of gender discrimination arising out of a denial of tenure. This two-week trial resulted in a defense verdict for our client, which was upheld on appeal by the Second Circuit. Ms. Rosenberg also counsels and litigates on behalf of higher education clients with regard to Title IX athletics compliance, student discipline, sexual harassment, disabilities issues and other issues unique to higher education settings.
- Whistleblower Defense. Ms. Rosenberg frequently defends employers against Sarbanes-Oxley and other whistleblower and retaliation claims. She is also retained by employers to conduct internal investigations and advise on whistleblowing and retaliation issues.
She designs and conducts training programs for clients and frequently speaks on employment law issues for employer and bar association groups such as National Employment Law Institute, Practising Law Institute, National Association of College and University Attorneys and the New York State Bar Association.
Ms. Rosenberg is the firmwide Partner in Charge of Pro Bono Programs, and serves on the firm’s Personnel Development, Risk Management, and Diversity Committees.
Before joining the firm, Ms. Rosenberg was an associate at Baer Marks & Upham in New York from 1986 to 1991.
On April 16, 2015, the New York City Council, by a vote of 47-3, approved legislation that would prohibit the use of credit checks in employment decisions except in limited circumstances. The bill, which is expected to be signed by Mayor Bill De Blasio, would amend the New York City Human Rights Law to make use of credit history in employment decisions an unlawful discriminatory practice. In passing this law, New York City joins the growing number of states and municipalities that have enacted legislation to restrict the ability of employers to request or use the credit history of applicants and employees. These state and local initiatives stem from the increased use of credit history as an employment screening tool and from concerns that credit history is not relevant to the performance of many jobs, and moreover, may adversely affect certain groups, including minorities and low-income individuals. The New York City bill is noteworthy in that it is one of the most restrictive laws to date, even after certain exceptions were added to the proposed legislation.
As the world reels in the wake of last month’s shocking crash of Germanwings Flight 9525 in France, many are questioning what, if anything, the airline should—or could—have done to prevent the tragedy. These questions necessarily touch on important issues about what an employer is permitted to address in pre- and post-employment medical screenings concerning an employee’s mental health.
In a much-anticipated move, the SEC on April 1, 2015 commenced a cease-and-desist action against KBR (formerly Kellogg Brown & Root) alleging its confidentiality agreements violated Dodd-Frank’s whistleblower regulations. KBR simultaneously agreed to settle the matter for $130,000. This is the first such case brought by the SEC, which had indicated over the last year or more that it was actively seeking examples of such alleged violations in order to enforce its Rule 21F-17, which provides, “No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement…” In unofficial comments, SEC staff had expressed the view that standard confidentiality and non-disparagement provisions found in many employer agreements might violate the Rule to the extent they did not have express carve-outs stating that nothing in those provisions prevented employees from going directly to the Commission with concerns.
As employers in New York were gearing up for distribution of the annual wage notices in January 2015, Governor Andrew Cuomo finally signed the amendment to New York’s Wage Theft Prevention Act that was passed by the legislature back in June and repeals the annual wage notification provision. While the other amendments to the Act will not take effect for 60 days, the Governor’s December 29, 2014 signing statement and the New York Department of Labor make clear that employers are not required to distribute wage notices to their employees this January. The amendment, however, does not relieve employers of their obligation to provide all newly hired employees with wage notices at the time of hiring. In addition, although not specifically addressed in the amendment to the Act, it would be prudent for employers to distribute a revised wage notice when an employee receives a new position with a different compensation structure during his or her tenure with the employer.
On December 5, 2014, San Francisco enacted two ordinances, dubbed the “San Francisco Retail Workers’ Bill of Rights,” that will extend benefits to part-time retail and food service employees and require certain employers to make schedules more predictable for all employees. The ordinances are believed to affect approximately 35,000 employees in San Francisco (approximately 5 to 6% of the City’s total wage and salary employment) and are also believed to provide the broadest protections in the country in terms of rights for part-time workers and scheduling requirements.
In a game-changing 3-2 decision on December 11, the National Labor Relations Board (NLRB or Board) overruled its 2007 Register Guard decision, which upheld the right of employers to limit employee access to company email systems, calling it “clearly incorrect” and holding that employees have a presumptive right to use their employers’ email systems for non-business purposes, like communications about union organizing, wages and working conditions, during “nonworking time.” Register Guard, which has long been criticized by organized labor, held that an employer may completely prohibit employees from using an employer’s email system for Section 7 purposes, even if they are otherwise permitted access to the email system—without demonstrating any business justification—so long as the ban is not applied discriminatorily.
In Berman V. Neo@Ogilvy LLC, 1:14-cv-523 (Dec. 4, 2014), Judge Gregory Woods of the Southern District of New York dismissed a Dodd-Frank whistleblower retaliation claim on the ground that internal reporting is not protected under the statute. In so holding, the court rejected the reasoning of a majority of district courts to address the issue to date (including several Southern District of New York decisions), as well as the SEC’s interpretation of the statute, and instead adopted the reasoning of the Fifth Circuit in Asadi v. GE Energy (USA), L.L.C. and a minority of district courts, which have held that “the language of the statute unambiguously requires that a person provide information to the [SEC] in order to qualify as a whistleblower under the Act.” You can find our prior blog posts on the split over this issue here (March 4, 2014), here (January 28, 2014), here (October 3, 2013), and here (July 18, 2013).
Thus, until the Second Circuit and other Circuit courts weighs in on this issue, the answer of whether internal reporting is protected under Dodd-Frank may hinge largely upon which district judge is assigned the case.
In Khazin v. TD Ameritrade, No. 14-1689, 2014 WL 6871393 (3rd Cir. Dec. 8, 2014), the Third Circuit affirmed a lower court’s decision compelling arbitration of a Dodd-Frank whistleblower retaliation claim. This is the first circuit court decision to address whether such claims are arbitrable, and the decision is consistent with two district court opinions that have previously addressed the issue.
On December 3, 2014, the U.S. Department of Labor (DOL) released its final rule barring federal contractors from discriminating on the basis of sexual orientation and gender identity. The final rule implements an Executive Order signed by President Obama in July 2014 amending Executive Order 11,246 to include sexual orientation and gender identity as prohibited bases of employment discrimination by federal contractors and subcontractors.