Third Time’s a Charm? The Republican Majority NLRB Is Re-Examining Section 7 and Company Email

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With a new Republican majority in the NLRB, the rules may be changing (again) when it comes to company emails. The NLRB is in the process of re-analyzing when and how employers can restrict employees’ company email use without running afoul of NLRA Section 7, and may begin upholding employer policies with facially neutral restrictions on company email and computer usage again in the near future.

A bit of background: Section 7 of the NLRA protects an employee’s right to engage in “concerted activities,” which occurs “when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” The NLRA’s protection of “concerted activities” is a broader concept than “union activities” and covers many different activities, including employee discussions about pay, work conditions, and safety concerns. The NLRB has construed the terms “concerted” and “protected” very broadly and vaguely, to include any activity aimed at affecting employee interests.

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Employers, Victims, and Witnesses Rejoice: California Bars Sexual Harassers from Suing for Defamation

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In the wake of #MeToo, California has enacted a new statute aimed to protect victims, witnesses, and former employers from claims of defamation for making complaints or communicating information about alleged sexual harassers to others.  On July 9, 2018, Governor Brown signed into law Assembly Bill 2770. The bill amends Civil Code section 47, which makes certain communications “privileged,” meaning those communications cannot be the basis of a defamation claim.

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NYC Harassment Poster and Notice Released

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The New York City Commission on Human Rights has released the Fact Sheet and mandatory Notice referenced in the recent Stop Sexual Harassment in NYC Act (the “Act”).  Effective September 6, 2018, all employers in New York City must conspicuously post the Notice in the workplace and must distribute the Fact Sheet to all new employees upon hire.  Alternatively, the Fact Sheet may be incorporated in an employee handbook distributed to new employees upon hire. READ MORE →

Wait a Minute…California Supreme Court Says Employers Must Pay for De Minimis Off-the-Clock Work

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On July 26, 2018, the California Supreme Court found that employers must compensate workers for the time they spend on certain menial tasks after clocking out of their shifts. In a unanimous decision, the Court held that California wage law did not bar a putative class action brought by a former Starbucks employee who routinely spent several minutes on trivial close-out tasks after his shift. READ MORE →

Brett Kavanaugh’s Supreme Court Job Interview: An Employer’s Perspective

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The Senate is gearing up to consider President Trump’s nomination of Judge Brett Kavanaugh as an Associate Justice of the Supreme Court to replace Justice Kennedy. While employment law is not likely to be the center of his confirmation hearings, many employers will be watching to see how Judge Kavanaugh’s appointment may impact employment cases that come before the Supreme Court. A review of Judge Kavanaugh’s employment law decisions during his time on the U.S. Court of Appeals for the D.C. Circuit suggests that although he sometimes sides with employees, he would be an employer-friendly addition to the Supreme Court.

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New California Law Fills in the Blanks of Salary History Ban

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Last week, California enacted new legislation updating the prohibition on employers inquiring into the salary history of their applicants and the requirement that employers respond to applicants’ requests for the pay scale for positions. This law, enacting Assembly Bill No. 2282, clarifies key provisions in Labor Code section 432.2 regarding employers’ obligations, which were left undefined in the bill that added Section 432.3 to the Labor Code last year. READ MORE →

Belaboring The Point: Supreme Court Opens the Door to Dismantling Public Sector Union Membership in Janus v. AFSCME

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Just over two years ago, after the passing of Justice Antonin Scalia but before the confirmation of Justice Neil Gorsuch, the U.S. Supreme Court deadlocked in a 4-4 tie over whether unions could require non-members to pay “fair share fees.” The case challenged the Supreme Court’s 1977 Abood v. Detroit Board of Education precedent that allowed public sector unions to force non-union members to pay fees covering the cost of collective bargaining so long as the workers were not made to pay for a union’s political or ideological activities.

Recently, in Janus v. AFSCME, the Supreme Court returned to the issue. Ultimately, the Court held that allowing public sector unions to require non-union workers to pay fair share fees violates workers’ First Amendment rights, thereby overturning the Abood precedent.

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Can You Hear The Whistle Now? SEC Proposes New Rule Amendments To Bolster the Bounty Program

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On June 28, the Securities Exchange Commission (“SEC” or “Commission”) voted to propose amendments to its whistleblower program. As SEC Chair Jay Clayton explained, the proposed changes would “strengthen the whistleblower program by bolstering the Commission’s ability to more appropriately and expeditiously reward those who provide critical information that leads to successful enforcement actions.” The SEC issued a press release outlining the proposed rules, which would: (1) provide the Commission with additional tools in making whistleblower awards; (2) clarify the requirements for anti-retaliation protection under the whistleblower statute; (3) provide interpretive guidance to help clarify the meaning of “independent analysis”; (4) increase efficiencies in the whistleblower claims review process; and (5) clarify various miscellaneous policies and procedures. READ MORE →

EEOC Jumps Into Court and Says “#MeToo”

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Just days after reconvening its Select Task Force on Harassment with a public meeting titled “Transforming #MeToo Into Harassment-Free Workplaces,” the EEOC marched into seven different federal district courts, from Los Angeles, California to Mobile, Alabama and in between, and said “#MeToo.”

In a statement about the meeting, EEOC Commissioner Chai R. Feldblum remarked that the challenge for the EEOC “is to use this #MeToo moment well”, observing that the EEOC had “the attention and commitment of the range of different actors in society that we need … [to] channel that energy to create significant and sustainable change.”

So what does this change look like? And what should employers be mindful of as they try to achieve compliance and reduce litigation risk? READ MORE →

Employment Law in Germany – Practical Bilingual English-Chinese Guidelines for Chinese Businesses and Investors

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Every Chinese investor not only needs to be aware of cultural differences when considering investing in Germany, but also has to have a basic understanding of legal issues.

German employment law provides for a good level of employee protection, for example in case of termination of employment. Being familiar with some basic principles of German employment law can help Chinese investors avoid pitfalls that may lead to severe sanctions by authorities as well as financial obligations towards employees.

Our Orrick Germany China Desk gives a brief outline of German employment law and what Chinese investors and businesses investing or doing business in Germany need to know in our bilingual English-Chinese guideline.

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