Articles

9th Circuit: Employers Must Foot the Bill for Post-Offer Follow-up Medical Exams

The Ninth Circuit recently sided with the Equal Employment Opportunity Commission (“EEOC”), holding that employers can’t require applicants to pay for follow-up post-offer medical exams.  Specifically, in EEOC v. BNSF Railway Company, No. 16-35457 (9th Cir. Aug. 29, 2018), the court affirmed that BNSF Railway Company (“BNSF”) violated the Americans with Disabilities Act (“ADA”) by conditioning the plaintiff’s job offer on his getting an MRI at his own expense.

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#MeToo One Year Later: The Legislative Reaction

On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement’s impact on sexual harassment claims in the workplace, Part 2 below focuses on the legislative reaction to the movement, and Part 3 discusses how employers have responded to #MeToo. READ MORE

FCRA Developments: Updated Summary of Rights & “Stand-Alone” Disclosure Need Not Be Separate In Time

Employers across the country should dust off their background check policies and forms and be mindful of recent developments related to the federal Fair Credit Reporting Act (FCRA).

FCRA mandates specific, technical steps for employers using consumer reports to make employment decisions, including hiring, retention, promotion or reassignment.  While many employers are familiar with the importance of following FCRA requirements, actual compliance with the law can be tedious and challenging.  As the law continues to evolve, employers should be aware of recent updates to the model federal form for consumer rights and recent guidance from a California federal court related to the “stand-alone” disclosure and authorization requirement. READ MORE

OFCCP to Change the Way it Assesses Contractors’ Compensation Systems

The Office of Federal Contractor Compliance Programs (“OFCCP”) may soon rescind Directive 307, OFCCP’s current official statement as to how it conducts federal contractor compensation system reviews, according to a story published by Bloomberg Law on April 19, 2018. This announcement comes on the heels of Directive 2018-01, issued by the OFCCP on February 27, 2018, which mandates the use of Predetermination Notices (“PDN”) prior to issuing a Notice of Violation (“NOV”), and further requires national office oversight and approval before a PDN is issued.  OFCCP notes that Directive 2018-01 is consistent with the agency’s focus to increase transparency about preliminary findings with contractors, and encourage communication throughout the compliance evaluation process.  Combined, these two developments illustrate that change is afoot at OFCCP, now that new leadership is in place in Washington. READ MORE

Federal Overtime Formula Falls Flat — California Supreme Court Adopts DLSE Interpretation for Flat Rate Bonuses

In a break from federal law, the California Supreme Court clarified in Alvarado v. Dart Container Corp. the proper formula for calculating flat-rate bonuses into overtime pay under California law.  The Court adopted the Plaintiff’s position and held that, for purposes of calculating the per-hour value of a flat rate bonus, the divisor should be the number of nonovertime hours the employee worked in the pay period rather than all hours worked during the pay period.  READ MORE

Clocking In: Scheduling Laws Popularity on the Rise

In a trend that is gaining steam across the country, multiple cities and states have, or are considering adopting, laws that impose conditions and penalties on employer scheduling practices, otherwise known as “scheduling laws.”  Although these laws mostly apply to retail and/or fast food employers, the specific language of the law or ordinance should be consulted to determine whether a broader category of employers may be implicated.

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Cybersecurity Whistleblowing Is Murkier Than You May Think

Employment Partner & Co-chair of Orrick’s Whistleblowing Task Force Renee Phillips, and Cybersecurity & Data Privacy Associate Shea Leitch, recently authored an article in Corporate Counsel magazine titled “Cybersecurity Whistleblowing Is Murkier Than You May Think.”

The article covers the emerging issue of cybersecurity whistleblowing and discusses scenarios in which cybersecurity whistleblowers can step forward. In addition, the authors touch on best practices for companies when addressing internal complaints and how to mitigate potential scrutiny from regulatory agencies. To read the full article, please click here.