Posts by: Michael Disotell

Will the Whistle Be Silenced? Dismantling Dodd-Frank

Silver school PE sports whistle on white background Will the Whistle be Silenced? Dismantling Dodd-Frank

When Donald Trump was elected President of the United States in November, he vowed to “dismantle” the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). In its place, Trump promised to replace the law “with new policies to encourage economic growth and job creation.”  Now a bill known as the Financial CHOICE Act may initiate the process to do just that. But at least with respect to Dodd-Frank’s whistleblower provisions, the Financial CHOICE Act would leave largely intact the current bounty programs that have already awarded tipsters over $150 million in the U.S. and abroad.

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Access Denied: Trial on Website Accessibility Claims Results in Decision for Disabled Individual

Web accessibility online internet website computer for people with disabilities symbol blue keyboard Access Denied: Trial on Website Accessibility Claims Results in Decision for Disabled Individual

On Tuesday, a federal district court in Florida issued an order in the first known trial involving accessibility to a public accommodation’s website.  Ultimately, the court found that grocery giant Winn-Dixie violated Title III of the Americans with Disabilities Act (“ADA”) because its website was inaccessible to a visually impaired customer.  As we have written about previously here and here, currently there are no binding regulations that specify the accessibility standards for websites under Title III of the ADA.

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Withdrawn: DOL Nixes Guidance on Independent Contractors and Joint Employment

Effective June 7, 2017, the Department of Labor (“DOL”) has withdrawn informal guidance on independent contractors and joint employment. The guidance on independent contractors came from an Administrator’s Interpretation released in 2015 and was the result of the DOL’s renewed focus on worker misclassification. In it, the DOL seized upon a broad definition of “employ” under the Fair Labor Standards Act (“FLSA”)—“to suffer or permit to work”—to conclude that “most workers are employees under the FLSA.”  The DOL’s guidance on joint employment was released in 2016 and also came from an Administrator’s Interpretation.  The guidance provided a broad interpretation of joint employment in the wake of the NLRB’s Browning-Ferris decision. It also distinguished between “horizontal” joint employment, which occurs when the employee has an employment relationship with two or more sufficiently related employers, and “vertical” joint employment, which occurs when the employee has an employment relationship with one employer (such a staffing agency or subcontractor), but economic realities show that he or she is economically dependent upon another entity.

In a press release announcing the withdrawn guidance, the DOL noted, “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.”

Rules of the Road: New CFTC Regulations Expand Whistleblower Bounty Program

The Commodity Futures Trading Commission (CFTC), published updated regulations Monday to bring its whistleblower bounty efforts more in line with the SEC’s.  The rules were proposed last August and generally provide more robust protections to would-be whistleblowers.  According to an agency press release, “In addition to strengthening anti-retaliation protections, the new amendments will add efficiency and transparency to the process of deciding whistleblower award claims and will, in many respects, harmonize the CFTC’s rules with those of the U.S. Securities and Exchange Commission’s whistleblower program.”  READ MORE

School’s Out! Ninth Circuit Holds Prior Salary of Teachers Can Justify Pay Differentials

As schools across the country prepare for summer break, the Ninth Circuit overturned a lower court decision against the Fresno County public school district which had found that its pay practices were unlawful. Notably, the Ninth Circuit held that an employer may rely on prior salary as an affirmative defense to claims under the federal Equal Pay Act (“EPA”) if “it show[s] that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as other practices.’” READ MORE

You May Now Be Seated: Neil Gorsuch Prepares for Spot on the High Court

After the Supreme Court sat with an empty seat for more than one year, and following a hard-fought nominations process which saw the failed nomination of Judge Merrick Garland and Republican lawmakers resorting to the “nuclear option,” the Senate confirmed Neil Gorsuch of the Tenth Circuit to be the next Supreme Court Justice.  His first day on the job was Monday, April 17th.  But for those who are not familiar with Judge Gorsuch, the question remains: what kind of Justice will he be? READ MORE

Flagged Down: Second Circuit Finds NYC “Black Car” Drivers Are Independent Contractors

The Second Circuit has affirmed the dismissal of a class action of New York City “black car” drivers who alleged they were misclassified as independent contractors by their dispatchers. In reaching its ruling, the Court found that multiple factors of the economic realities test weighed against employee status for the drivers.

Black car drivers provide rides to high-end clientele, such as business executives, celebrities, and dignitaries. In 2012, a class of drivers sued Corporate Transportation Group Ltd. and a number of its affiliates (collectively, the “dispatchers”) alleging they were misclassified as independent contractors in violation of the FLSA and New York Labor Law.  After originally granting conditional class certification, the U.S. District Court for the Southern District of New York granted the dispatchers’ motion for summary judgment, concluding the drivers were properly classified as independent contractors under both statutes. READ MORE

Back To The Drawing Board: Tenth Circuit Denies EEOC Subpoena Request Seeking To Expand Individual Charge Into Pattern-or-Practice Investigation

“[A] single discriminatory act does not, by itself, warrant a broader patter-or-practice investigation.” That was the conclusion the Tenth Circuit reached recently when it affirmed a federal district court’s denial of an EEOC subpoena request.  Although the Tenth Circuit disagreed with part of the lower court’s reasoning, it ultimately determined the EEOC’s request was flawed on several grounds. READ MORE

I’ll Defer To You: Supreme Court Rules Appellate Courts Should Apply Abuse Of Discretion Standard When Reviewing EEOC Subpoena Efforts

Recently, in McLane Co., Inc. v. EEOC, case number 15-1248 , the United States Supreme Court clarified the standard for when an appellate court reviews a trial court’s order to enforce or quash a subpoena from the EEOC. Vacating a Ninth Circuit decision applying a de novo standard of review, the Court ruled that appellate courts should review based on the abuse of discretion standard. READ MORE

Whistle While You Work?: First Court To Rule On DTSA’s Whistleblower Immunity Provision Treats It As An Affirmative Defense

The Defend Trade Secret Act (“DTSA”) contains a whistleblower immunity provision which could have a significant impact on employers. Until last month, however, no court had interpreted this provision which provides that no one “shall be held criminally or civilly liable under Federal or State trade secret law for the disclosure of a trade secret” made in confidence to a government official or an attorney and “solely for the purpose of reporting or investigating a suspected violation of law.” 18 U.S.C. § 1833(b).  Now, the U.S. District Court for the District of Massachusetts has.  In rejecting that assertion of the provision in a motion to dismiss, the court concluded that the party seeking the protections of the provision has the burden of at least asserting facts justifying its application. See Unum Group v. Loftus, No. 16-cv-40154-TSH, 2016 WL 7115967 (D. Mass. December 6, 2016). READ MORE