Employment Law

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

California’s Tightened Regulations on Considering Criminal History in Employment Decisions Take Effect July 1, 2017

Last year, the California Fair Employment and Housing Council proposed new regulations on an employer’s consideration of criminal history in making employment decisions. Those regulations were approved this year by the Office of Administrative Law after a period of public comment and are due to become effective on July 1.

New Clarification on Adverse Impact Claims READ MORE

Trump’s Religious Freedom EO May Set Stage for Future Expansion of Religious Exercise in the Workplace

On May 4, 2017, the President signed the Executive Order Promoting Free Speech and Liberty (the “EO”). The EO’s stated policy is to “vigorously enforce Federal law’s robust protections for religious freedom.” An early version of the Executive Order contained provisions that directed the Department of Labor to begin rulemaking which could have expanded the religions exemptions to federal civil rights laws for federal contractors.  While this and other expansive provisions were not included in the current EO, further accommodations of religious exercise in the workplace are not off the table.   READ MORE

Time for a Check-Up: 5 More Sick Leave Laws Await Employers on July 1, 2017

There’s been no shortage of paid sick leave laws at the state and local level over the last few years. We have covered this growing patchwork of laws and the challenges they present for employers since this trend emerged a couple years back.

The latest round of sick leave laws to take effect did not go unchallenged. In fact, the new laws discussed in this post have already faced opposition in three forms: (1) a legal challenge in court; (2) a spate of defecting municipalities opting out of a county ordinance; and (3) a state-level preemption bill aimed at blocking local sick leave laws.

For now, it appears that each of these efforts has failed, and on July 1, 2017, five paid sick leave laws take effect. Out West, Arizona will become the sixth state to enact a paid sick leave law.  And in the Midwest, Chicago and Cook County, IL (where Chicago is located) and Minneapolis and Saint Paul, MN will each see their paid sick leave laws take effect.  Below is an overview of these soon-to-be laws.

While these five laws will certainly provide plenty for employers to think about between now and July, the wave of sick leave laws shows no signs of receding; currently, there’s talk of legislation in Michigan, Maine, Nevada, Rhode Island, and Maryland. READ MORE

Oh F**k: Employee’s Profane Facebook Post is Protected Activity

On April 21, 2017, the Second Circuit Court of Appeals upheld a National Labor Relations Board (NLRB or Board) ruling that an employer violated the National Labor Relations Act (NLRA or Act) when it discharged a catering employee for posting a vulgar comment on social media directed at his supervisor. In NLRB v. Pier Sixty, LLC (2d Cir. 2017), the court determined that the employee’s post, under the particular circumstances of the case, was not so “opprobrious” as to lose protection under the NLRA. 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

Agency and Contractor Compliance in Germany–Are You Ready?

On April 1 2017, the reform of the German Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz) came into force bringing major changes for agencies and their clients. Agencies and their customers have to revisit work processes and agreements. The same is true for the use of external staff based on service or work contracts (e.g., facility management, IT services) The time to act is now, since not all changes are subject to transition periods. In fact, material changes already came into force on April 1,2017, the violation of which may result in severe sanctions up to criminal penalties.

READ MORE