Germany’s 2018 Coalition Deal – Significant Changes for Employers on the Horizon

After months of exhausting, on-off negotiations with changing negotiation partners at the table, on February 7, 2018, Angela Merkel’s center-right Christian Democratic Union (CDU/CSU) and the center-left Social Democratic Party (SPD) agreed on a new coalition agreement for a third grand coalition – usually referred to as “GroKo” in Germany. The deal still requires formal approval by the 460,000 SPD members in a postal vote, the outcome not expected before early March 2018. READ MORE

New Lawsuit Alleges Rush to Judgment in #MeToo Climate

Newton’s Third Law of Physics states that “for every action, there is an equal and opposite reaction.” A recent Complaint filed in the Southern District of New York suggests that this principle may also hold true for the recent “Me Too” movement. READ MORE

Legislators Quick to Respond to #Metoo


Since Anita Hill’s testimony in the early 1990s, sexual harassment has become a familiar term. At the federal level, Title VII prohibits harassment, discrimination, and retaliation on the basis of sex and gender, among other things. On the state level, the New York State Human Rights Law (“NYSHRL”) expands on the categories of protected classes covered by Title VII but is interpreted by the courts in largely the same manner as Title VII. Under California’s Fair Employment and Housing Act (“FEHA”), harassment is defined to include verbal harassment (such as derogatory comments), physical harassment (including physical interference with movement), visual harassment (such as derogatory cartoon or drawings), and sexual favors. FEHA prohibits sexual harassment because of a person’s sex, gender, gender identity, gender expression, sexual orientation, transgender status, pregnancy, and childbirth, breastfeeding, and related medical conditions. Harassment based on the perception of any of these characteristics is also prohibited, and sexually harassing conduct need not be motivated by sexual desire to be considered unlawful. READ MORE

CEO’s Whistleblower Claims “Rest On Feet Of Clay”: Seventh Circuit Affirms Dismissal Of SOX and Dodd-Frank Case

Earlier this month, the Seventh Circuit affirmed dismissal of a CEO’s whistleblower retaliation claims in a decision that should provide corporate defendants ammunition to fight SOX and Dodd-Frank whistleblower cases going forward.

In Verfuerth v. Orion Energy Systems, Inc., No. 16-3502 (7th Cir. Jan. 11, 2017), the plaintiff, founder and former CEO of Orion, claimed that Orion’s Board of Directors terminated him for cause in retaliation for making whistleblower complaints about perceived fraud on SEC reports and other managerial decisions.  Orion asserted that it terminated Verfuerth for numerous legitimate reasons, including falling stock prices, Verfuerth’s intimidating leadership style, high rates of senior management turnover, and other business disagreements such as reimbursement for Verfuerth’s costly divorce. READ MORE

CA Court of Appeal Ruling Takes PAGA Standing By The Reins

Since its inception, the Private Attorneys General Act of 2004 (“PAGA”) has been a thorn in employers’ sides by allowing “aggrieved employees” to seek civil penalties on behalf of the State of California and other “aggrieved employees” for violations of the California Labor Code. In a small victory for employers, the California Court of Appeal recently bestowed a key limitation on what it means to be an aggrieved employee for purposes of PAGA standing. Specifically, the court held that an employee who settles his individual Labor Code claims against his employer no longer has standing as an “aggrieved employee” under PAGA. READ MORE

What’s In a “Wage”? Ninth Circuit Seeks Clarification from California Supreme Court

California has some of the most employee-friendly laws in the country, many of which turn on whether the allegedly wronged employee is seeking to recover “wages” due. The Ninth Circuit Court of Appeals recently asked the California Supreme Court to resolve a tension in existing case law about what constitutes a “wage,” with potentially far-reaching impact for employment cases—in particular, those involving meal and rest period claims. READ MORE

Are Interns Actually Employees? DOL Adopts New Guidance for Assessing Whether Interns Qualify as Employees

As part of its revision of Obama-era policies, the U.S. Department of Labor (“DOL”) recently announced a new test for assessing whether interns qualify as employees under the Federal Labor Standards Act (“FLSA”). The agency’s adoption of a “primary beneficiary” test aligns the DOL with several circuit court decisions and provides greater flexibility in analyzing intern-employer relationships under federal law. READ MORE

Reversed! NLRB Overrules Browning-Ferris Decision And Returns To Prior Joint Employment Standard

On December 14, 2017, the new Republican majority at the National Labor Relations Board (the “Board”) overturned a controversial Obama-era decision regarding joint employment.  The Board’s 3-2 decision in Hy-Brand Contractors, Ltd. and Brandt Construction Co. (“Hy-Brand”) rejected the 2015 Browning-Ferris decision, which had fundamentally broadened the joint employer standard.  READ MORE

EEOC Warning: Confidentiality Provisions of Settlement Agreements Cannot Restrict An Employee’s Right To File EEOC Charges

The flurry of high-profile harassment allegations across various industries has drawn the public’s attention to the issue of sexual harassment over the past several months.  Unsurprisingly, it has also resulted in increased scrutiny in this area by the Equal Employment Opportunity Commission (EEOC). READ MORE

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