Employment Law

Must-See Viewing: NYC Sexual Harassment Video Training Released

The New York City Commission on Human Rights (“NYCCHR”) released its long anticipated model anti-sexual harassment training on April 1, 2019.  The City’s model training satisfies all of the training requirements under both New York State and City laws, although the training is geared to educate viewers as to the broader sexual harassment protections afforded to workers by the New York City laws.  READ MORE

Tip-ping the Scales: New Challenge to the DOL’s Revised Tip Credit Rule

As was reported late last year, the Department of Labor (“DOL”) in 2018 published an Opinion Letter (FLSA2018-27), effectively rescinding the agency’s 80/20 tip credit rule. In general, the tip credit rule permits employers in tip-producing industries, such as the restaurant industry, to compensate employees at a minimum rate of $2.13 per hour, and to take a credit against the tips an employee receives. An employer is additionally responsible for the remainder of an employee’s wages, if any, between what the employee earned in wages and tips combined, and the federal minimum wage. READ MORE

Hut-Hut-Hike: The Second Circuit Tackles Hostile Work Environment Claims Under the ADA

In a case of first impression, the Second Circuit has held that hostile work environment claims are cognizable under the American with Disabilities Act (ADA).  In Fox v. Costco Wholesale Corporation, No.17‐0936‐CV (2d Cir. Mar. 6, 2019), the Second Circuit joined the Fourth, Fifth, Eighth, and Tenth Circuits to recognize this cause of action under the ADA.  The court also provided useful guidance on when teasing may or may not suffice to establish a hostile work environment. READ MORE

Confidentiality Optional: New Jersey Nixes NDAs and Arbitration for Discrimination and Harassment Claims

In the wake of the #MeToo movement, lawmakers nationwide proposed legislation with expressed goals of preventing future sexual harassment scandals. Many proposed bills expired in committee and only a select few became law. New Jersey’s Senate initially proposed S-121 in January 2018. Governor Phil Murphy just signed it into law on March 18, 2019 (full text here). READ MORE

IRS Reports Record $312 Million In Whistleblower Bounties

In February, the Internal Revenue Service (IRS) released its FY 2018 Annual Report and announced a record-breaking year for the agency’s whistleblower program.  Overall, whistleblowers provided information that contributed to the agency’s recovery of over $1.44 billion during the course of the year.  As a result, the IRS awarded $312 million in bounty awards to whistleblowers in FY2018, an almost ten-fold increase from the $33.9 million in awards it made in FY2017.  Of the 217 total awards the agency made to whistleblowers in FY 2018, 31 were mandatory awards under Internal Revenue Code section 7623(b) and 186 were discretionary awards under section 7623(a) (which applies to smaller cases). The average award percentage from the total amount collected was 21.7% – up from 16.6% in FY 2016 and 17.8% in FY 2017. READ MORE

EEOC’s Revised Pay Data Collection Rule is Back in Force

Uncertainty continues for the EEOC’s attempt to expand the collection of employers’ pay data. Last Monday, the D.C. District Court in National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C. Mar. 4, 2019), reinstated the EEOC’s revised EEO-1 form that increases employers’ obligation to collect and submit pay data. READ MORE

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

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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New York City: Employment Actions Based On Hairstyle May Be Unlawful Race Discrimination

On February 18, 2019, the New York City Commission on Human Rights (NYCCHR) announced new enforcement guidance deeming certain actions taken based on an individual’s hair or hairstyle – whether at work, at school, or in public spaces – a form of racial discrimination. READ MORE

Money for Nothing? On-Call Checks For Free: California Court Says Employers Must Pay Employees For Certain On-Call Scheduling Requirements, Even If Employees Are Not Called Into Work

A California Court of Appeal recently issued an order in Ward v. Tilly’s, Inc. finding that certain on-call scheduling practices trigger “reporting time pay” requirements even when the employee does not actually come into the work site. READ MORE

Federal Labor Court: No More Automatic Forfeiture of Vacation Entitlements in Germany

Very recently, the European Court of Justice (ECJ) held that an automatic forfeiture of vacation entitlements or vacation compensation entitlements without prior notification of the employee contravenes EU law. The German Federal Labor Court (Bundesarbeitsgericht, BAG) now has joined this case law in its decision of February 19, 2019. This requires employers to take action. READ MORE