Awards and Recognitions

The Whistle Blows North of the Border: Canadian Securities Regulator Makes First-Ever Whistleblower Awards

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This article was co-authored by Omar Madhany, Associate at Borden Ladner Gervais LLP [1], and Mike Delikat, who co-heads the Whistleblowing Taskforce at Orrick.

On February 27, 2019, the Ontario Securities Commission (OSC)—Canada’s largest securities regulator—announced that it had awarded $7.5 million to three whistleblowers who provided tips that led to enforcement actions. (see OSC news release here). The awards are the first ever made under Ontario’s whistleblower bounty program, which was patterned closely after the bounty provisions of Dodd-Frank.  While these awards are small by comparison to recent SEC bounty awards of $54 million to two whistleblowers in September 2018 and a separate composite mega-award of $83 million to three whistleblowers in a single enforcement action on March 19, 2018, nonetheless these Canadian awards have garnered significant attention and press coverage in Canada.

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Is the EEOC Rushing Your Company to Court? SCOTUS Says Not So Fast

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The U. S. Supreme Court unanimously ruled on April 29 that courts can review whether the EEOC has satisfied its obligation under Title VII to conciliate before running to court.  Title VII dictates that when the EEOC believes that an employer has discriminated against its employees, it must attempt to “eliminate such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.”  However, if the EEOC cannot obtain a conciliation agreement that “is acceptable to the Commission,” the EEOC may then bring a lawsuit.  Up to now, there has been some debate as to what the EEOC needs to do to prove that it has cleared the conciliation hurdle before sprinting into litigation.  In one of the most important labor and employment decisions of this term, the Court held that courts have limited authority to review the EEOC’s conciliation efforts, adopting a middle-ground position that “respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the lead.” Mach Mining LLC v. EEOC, U.S., No. 13-1019, 4/29/15.

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U.S. Supreme Court Holds Security Screenings Are Not Compensable Under the FLSA

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In a long awaited 9-0 decision, the U.S. Supreme Court held that employers are not required to compensate employees for time spent waiting for and undergoing security screenings (aka bag checks) under the Fair Labor Standards Act. It concluded that security screenings were noncompensable postliminary activities because they were not the “principal activities” the employees were employed to perform, nor were they “integral and indispensable” to those activities. The case is Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. ____ (2014) and a copy of the opinion can be found here.

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It Might be Mechanical, But It’s Exempt: Court Dismisses Temp Document Reviewing Attorneys’ Overtime Collective Action

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A district court in New York dismissed the putative collective action filed by a contract attorney who performed document review for Skadden, Arps, Slate, Meagher and Flom LLP (“Skadden”) for fifteen months. See Lola v. Skadden, Arps, Slate, Meagher & Flom LLP.  Under the Fair Labor Standards Act (“FLSA”), an employee is exempt from overtime as a professional employee if he or she is “the holder of a valid license . . . permitting the practice of law” and “who is actually engaged in the practice thereof.” 29 C.F.R. § 541.3.  The named plaintiff and proposed class representative, David Lola, was a licensed attorney, and, therefore, the dispositive question was whether he was practicing law such that he qualified for the exemption.

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Seeking Credit for Deferred Commissions? You Might Get Declined

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Last week, the California Supreme Court issued its decision in Peabody v. Time Warner Cable, Inc., deciding that employers may not apply commission payments to earlier pay periods for the purposes of establishing that an employee meets the minimum wage component under the commissioned employee exemption.

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