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

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

Collection of Pay Data by Gender, Race and National Origin

On August 15, 2012, a panel commissioned by the Committee on National Statistics (CNSTAT) issued a report concluding that the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor (DOL) should not collect earnings data by gender, race and national origin from private employers until the agencies develop a clearly articulated plan regarding how the data will be used to further their enforcement responsibilities.  The panel also made several recommendations to assist the agencies in preparing to collect such data. Read More

ARB Holds Private Firm Accountants Are Covered By SOX

In Spinner v. David Landau and Associates, LLC, the Department of Labor’s Administrative Review Board (“ARB”) held that an accountant for a private firm was a covered employee under SOX where the firm performed services for publicly traded clients. In so holding, the ARB rejected the First Circuit’s contrary interpretation of SOX in Lawson v. FMR LLC. The Spinner decision provides new ammunition for employees of non-public companies seeking to bring SOX whistleblower claims against their firms and raises significant liability concerns for firms that have operated under the assumption that their employees were not covered by SOX’s whistleblower provisions. Read More

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.

The Affordable Care Act and Lactation Breaks

As the nation awaits the Supreme Court’s opinion on the constitutionality of its individual health insurance mandate, some lesser-known provisions of the “Patient Protection & Affordable Care Act” (a.k.a. “Obamacare”) have received short shrift.  For instance, the Affordable Care Act also amended the Fair Labor Standards Act (“FLSA”) and requires employers to provide nursing employees with “a reasonable amount of break time to express milk as frequently as needed” for up to one year after a child’s birth.  The law also requires all employers subject to FLSA to provide employees with a private place to express milk that is not a bathroom.

While at first blush, this law sounds rather broad, it contains several limitations: Read More