The Ending Forced Arbitration of Sexual Harassment Act: A Legislative Response to #MeToo

With sexual misconduct allegations sending shockwaves everywhere from Hollywood to Washington, it should come as no surprise that some legislators are chomping at the bit to pass legislation addressing sexual harassment in the workplace. On December 6, a group of lawmakers introduced legislation that would eliminate forced arbitration clauses in employment agreements. Representatives Cheri Bustos (D-Ill), Walter Jones (R-N.C.) and Elise Stefanik (R-N.Y.) and Senators Kirsten Gillibrand (D-N.Y.), Kamala Harris (D-Calif.) and Lindsey Graham (R-S.C.) are sponsoring the “Ending Forced Arbitration of Sexual Harassment Act,” which proponents say will prevent women from being silenced through mandatory arbitration agreements. READ MORE

The Whistle Keeps Blowing: SEC Whistleblower Office Releases Its 2017 Annual Report

The SEC released its Fiscal Year 2017 Annual Report (the “Report”) to Congress on the Dodd-Frank Whistleblower Program on November 16, 2017. The Report analyzes the tips received over the last twelve months by the SEC’s Office of the Whistleblower (“OWB”), provides additional information about the whistleblower awards to date, and discusses the OWB’s efforts to combat retaliation and other actions that muzzle whistleblowers. READ MORE

“Call-In Pay” for “On-Call” Work: New York’s Proposed Employee Scheduling Rules

The New York State Department of Labor has introduced its proposed rules, to address the practice of “on-call” scheduling (also called “just-in-time” or “call-in” scheduling), which the Department describes as “common practices that allow employers to schedule or cancel workers’ shifts just hours before or even after it starts.” Governor Andrew M. Cuomo states that the regulations are intended to “increase fairness for workers and allow employers to retain flexibility.” The full rulemaking package will be release on November 22, 2017, which will kick off the 45-day window for public comment. READ MORE

Laying Down the Law(son): Jury Returns Defense Verdict in First SOX Whistleblower Case to Reach the U.S. Supreme Court

An individual who convinced a divided U.S. Supreme Court in 2014 that Sarbanes-Oxley’s (“SOX”) whistleblower protections extend to the employees of a public company’s contractors and subcontractors has ultimately lost her case before a federal jury in Massachusetts, thus ending her ten-year legal saga.

Lawson claimed that in 2005 she spotted what she believed were accounting irregularities at Fidelity that allowed the company to charge millions of dollars in excessive fees to mutual fund shareholders.  She never called Fidelity’s information hotline to report the inaccuracies, but instead filed a whistleblower tip a year later with the SEC regarding the alleged fraud.  While the SEC did not pursue an enforcement action against the company, Lawson claimed that Fidelity managers and employees harassed her and retaliated against her for the reporting by giving her lower performance ratings and bonuses.  Lawson resigned in 2007 and sought whistleblower protections under SOX. READ MORE

U.K. Court Orders Employee To Hand Over Personal Computer

It is increasingly common that there are disputes with employees at the end of employment about whether or not they have taken or retained an employer’s confidential information. Most employers in the UK have a provision relating to the use (and misuse) of confidential information and a requirement to return all company property at the end of employment in the contract of employment. There is also a common law requirement for employees not to use their employer’s genuine confidential information after they have left employment, so even if you missed the boat on the contract, employers in the UK have some protection.
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“#MeToo”: Fostering A Harassment-Free Workplace

In the last several weeks, allegations of rampant sexual harassment have shocked the collective conscience. With the assistance of social media, what started as an allegation against a Hollywood mogul snowballed into a nation-wide conversation about sexual harassment in the workplace and elsewhere. According to the Washington Post, hundreds of thousands of men and women took to Twitter and Facebook to express they had been victims of sexual harassment, many of them using the hashtag “MeToo” to show solidarity with other victims. READ MORE

The Federal Overtime Rule Stalls and State Minimum Wage and Overtime Rules Rev Up

The Obama-Era Overtime Rule Stalls

As we previously reported, a federal district judge’s invalidation of the Obama-era overtime rules – which proposed a sharp increase in the salary threshold for exempt employees, expanding overtime pay to millions of workers – did not doom the possibility of changes to the minimum salary requirements.  Last week, on October 30, the Department of Labor filed a notice of appeal of the decision.  The notice comes after the DOL started the rulemaking process to replace Obama’s Rule with a new rule increasing the current minimum salary level by about 50% (to around $33,000).  If this became effective, it would be a significant departure from the Obama-era Rule, which doubled the minimum salary level to $47,476.  The DOL is expected to issue the new proposed rule in the coming months. READ MORE

Oral Arguments Heard by the Supreme Court on Enforceability of Class Action Waivers in Arbitration Agreements

In July, we reported that the Supreme Court scheduled oral arguments to settle the circuit split of whether mandatory class action waivers violate section 7 of the National Labor Relations Act (“NLRA”).

Last month, both sides argued before the Court: the pro-employer representatives argued that arbitration agreements containing class waivers must be enforced under the FAA (representing the Second, Fifth and Eighth Circuits) while the pro-employee representatives argued that class waiver provisions contained in arbitration agreements are illegal under the NLRA and thus, not subject to the FAA (representing the Sixth, Seventh and Ninth Circuits). READ MORE

COFFEE BREAK: Third Circuit Reminds Employers That Short Breaks May Be Compensable Under FLSA

Most employers in California are all-too familiar with the Golden State’s unique meal and rest break requirements.  But outside of states like California, Oregon, and Washington, which have clear requirements for meal and rest breaks, employers may forget that the Fair Labor Standards Act has its own rest break obligations. READ MORE

Will France Become More Employer Friendly with Labor Law Reform?

In June 2017, the French government unveiled its plan to renew French social model, such program includes notably reforming employment law, French pension and unemployment insurance systems.

As a first step of this comprehensive reform strategy, five ordinances reforming French labor laws were adopted on 22 September 2017 and issued on 23 September 2017 (the Reform).

Unless specifically provided otherwise, the measures introduced by the Reform will enter into force on the day after the publication of the required implementation decrees (expected as from end of October 2017 onwards), and at the latest on 1 January 2018. By exception, certain measures are applicable since publication of the ordinances (e.g. regarding dismissals, temporary work and teleworking). In addition, transitional arrangements may allow existing employee representation to remain in place for the duration of the current mandate but until no later than 31 December 2019. READ MORE