Mind the Gap: Obama Takes New Executive Action on Pay Equity in the Workplace

Last week President Obama continued his administration’s push to tackle pay equity issues by taking executive action to put federal contractors’ compensation practices under greater scrutiny. On April 8, 2014, the President signed a memorandum and executive order designed to address race and gender-based disparities in compensation. The memorandum directs the Department of Labor (“DOL”) to propose a rule within 120 days requiring federal contractors and subcontractors to submit “summary data” on employee compensation by race and sex to the DOL using a “tool” to be developed by the agency. The executive order signed along with the memorandum bans federal contractors from retaliating against employees for discussing their compensation with each another in an effort to “enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices” in pay. Read More

Babysitters at the Gate: The Supreme Court’s Radical Expansion of SOX’s Whistleblower Protections

Yesterday, in Lawson v. FMR LLC, a divided U.S. Supreme Court decided its first case addressing the whistleblower protections of the Sarbanes-Oxley Act (SOX).  The question before the Court: do those protections extend only to the employees of public companies, or do they also reach the employees of contractors and subcontractors of public companies?  You can see our prior posts on the case here (June 19, 2012), here (October 8, 2013), here (January 7, 2014), and here (January 28, 2014). Read More

SOX Gone Wild: Misappropriation and Transmission of Confidential Company/Employee Data to the Government Protected under SOX

A whistleblower who took sensitive company data from his employer and turned it over to the IRS has won his retaliation claim at the Department of Labor under the Sarbanes-Oxley Act’s (“SOX”) whistleblower protection provisions. In Vannoy v. Celanese Corp., ALJ Case No. 2008-SOX-00064, ARB Case No. 09-118 (ALJ July 24, 2013), an Administrative Law Judge was presented with the question of whether Vannoy’s removal of highly sensitive company data and transmission of that data to the IRS constituted protected activity under SOX. Vannoy, who was formerly employed as the administrator of Celanese’s corporate credit card program, first allegedly complained internally that the company “misstated their financial records and underestimated their required tax burden potentially in millions.” Vannoy sought legal counsel and eventually reported the company’s alleged accounting misconduct to the IRS.  Read More

The Affordable Care Act – Consider Yourself on Notice

Under the Affordable Care Act, employers subject to the Fair Labor Standards Act must provide a “Notice of Coverage Options” to each employee. The purpose of this Notice is to inform employees that they may obtain health insurance through their states’ Health Insurance Marketplace. For current employees, the Notice must be distributed before October 1, 2013.  For new employees, the Notice must be given within 14 days after work begins.  Read More

The High Cost of Hiring Unpaid Interns

Given the difficulty of finding a job in today’s economy, unpaid internships are becoming increasingly popular, particularly for students looking to gain resume-boosting experience. Yet just because someone is willing to work for free and will derive some benefit from an unpaid internship, it does not make it legal under state and federal law. Class litigation regarding unpaid interns is on the rise, and likely will increase even more given the recent ruling in Glatt v. Fox Searchlight PicturesRead More

Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children

The ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims; it also broadened the scope of FMLA leave that employees may take to care for their adult children. On January 14, 2013, the Department of Labor clarified that the age of the onset of a disability is irrelevant to determining whether an individual is considered a “son or daughter” under the FMLA. See Dept. of Labor Wage and Hour Div., Administrator’s Interpretation No. 2013-1. Read More

Governor Cuomo Signs Amendment to New York Wage Deduction Law

On September 7, 2012, Governor Cuomo signed a law that will relax some of the stringent prohibitions against wage deductions under New York Law.  Beginning on November 6, 2012, the law will now permit employers, with voluntary employee consent, to take wage deductions for certain employee benefits such as health club membership dues and cafeteria purchases. (See Amendment to New York’s Labor Law Expands the Universe of Permissible Wage Deductions)  Significantly, Section 193 of the New York Labor Law will now allow employers to take wage deductions to recoup overpayments of wages due to mathematical or clerical errors.  However, the New York Department of Labor is expected to issue regulations on how these overpayments will be allowed to be deducted.  The amendment also imposes heightened requirements on the type of notice and authorizations that employers must obtain from their employees before taking any of the newly authorized deductions, and employers will be expected to keep those authorizations for their employees’ entire career and for six years after the end of employment.  Even with these hurdles, employers will welcome this reprieve from New York’s restrictive wage deduction laws.  Click here to read the full alert.

Christopher v. SmithKline Beecham – Supreme Court holds Pharma Reps Exempt Outside Salespersons

On June 18, 2012, a 5-4 split United States Supreme Court held in Christopher v. SmithKline Beecham Corp. that under the most reasonable interpretation of the Department of Labor’s regulations, pharmaceutical sales representatives are exempt from overtime as outside salespersons under the Fair Labor Standard Act. This decision resolves the split in authority between the Ninth and Second Circuits in favor of employers and strikes a blow to the deference accorded to the DOL in interpreting its regulations. Read More

Department of Labor Rejects Title VII Framework in SOX Whistleblower Cases

A new opinion from the Department of Labor (“DOL”) makes clear that the department will treat the burden of proof in whistleblower retaliation claims under the Sarbanes-Oxley Act (“SOX”) differently from typical retaliation claims under Title VII.  In an opinion issued in late MarchZinn v. American Commercial Lines Inc. – the DOL’s Administrative Review Board (“ARB”) reversed an administrative law judge’s decision that applied Title VII’s “burden shifting” framework to dismiss Zinn’s whistleblower retaliation claim.  Specifically, the ARB removed the third prong of the traditional “burden shifting” analysis as discussed further below.

Under Title VII, once an employee makes a prima facie case of retaliation, the burden shifts to the employer to provide a legitimate non-retaliatory reason for taking the adverse employment action at issue in the case.  If an employer provides such a reason, the burden then shifts back to the employee to show that the employer’s reasons were actually a pretext for retaliation.  In Zinn, the ARB found it was incorrect to apply this framework and “conflat[e] the SOX burden of proof standard with the Title VII burden of proof.”  Under SOX, the employee needs to show that she engaged in protected activity that contributed to an adverse employment action.  The burden then shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the same adverse action absent the protected activity.  However, the ARB clarified that it was unnecessary for the employee to then show that the employer’s actions were pretextual.  Instead, once an employer produces evidence to support that its actions were non-retaliatory, an administrative law judge should “weigh the circumstantial evidence as a whole” to “gauge the context of the adverse action in question” and determine whether the case should proceed.  With this distinct standard and its rejection of the familiar Title VII framework, the DOL has made it evident that SOX whistleblower cases will continue to be a unique and developing area of employment law.