[{"id":3082,"date":"2020-03-30T15:00:39","date_gmt":"2020-03-30T19:00:39","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=3082"},"modified":"2020-03-30T15:00:39","modified_gmt":"2020-03-30T19:00:39","slug":"new-york-state-department-of-labor-releases-guidance-and-faqs-for-compliance-with-newly-enacted-covid-19-leave-law","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2020\/03\/30\/new-york-state-department-of-labor-releases-guidance-and-faqs-for-compliance-with-newly-enacted-covid-19-leave-law\/","title":{"rendered":"New York State Department of Labor Releases Guidance and FAQs for Compliance with Newly-Enacted COVID-19 Leave Law"},"content":{"rendered":"<p>The New York State Department of Labor (\u201cNYSDOL\u201d) has issued <a href=\"https:\/\/paidfamilyleave.ny.gov\/covid-19-paid-leave-guidance-employers\">guidance<\/a> (the \u201cGuidance\u201d)\u00a0and answers to <a href=\"https:\/\/paidfamilyleave.ny.gov\/new-york-paid-family-leave-covid-19-faqs\">frequently asked questions<\/a> (\u201cFAQs\u201d)\u00a0relating to various aspects of the newly-enacted legislation providing emergency sick leave, expanded New York Paid Family Leave (\u201cNYPFL\u201d) and expanded short-term disability benefits to certain employees unable to work because of COVID-19. Our previous analysis of this legislation (the \u201cAct\u201d) and what it means for employers can be found here: <u><a href=\"https:\/\/blogs.orrick.com\/employment\/2020\/03\/23\/new-york-state-passes-paid-leave-for-quarantined-employees\/\">https:\/\/blogs.orrick.com\/employment\/2020\/03\/<\/a><\/u>.<!--more--><\/p>\n<p>Below is a summary of the key new information and clarifications contained in the Guidance and FAQs.<\/p>\n<p><strong><b>Independently Self-Isolating Employees Are Excluded from the Act <\/b><\/strong><\/p>\n<p>The Guidance reminds employers that the Act provides emergency sick leave to an employee who is under an order of either mandatory or precautionary quarantine or isolation issued by the State of New York, New York State Department of Health, local Board of Health or any government entity authorized to issue such an order.<\/p>\n<p>However, the FAQs clarify that an employee who independently decides to self-isolate or quarantine (in the absence of a mandatory or precautionary order from an authorized government entity) is not eligible to use emergency sick leave under the Act. As discussed below, eligible employees must also submit a copy of any such order before utilizing the NYPFL or short-term disability benefits.<\/p>\n<p><strong><b>Duration and Retroactive Application of Emergency Sick Leave <\/b><\/strong><\/p>\n<p>The FAQs state that the number of paid days is calendar days, and the pay required should represent the amount of pay that the employee would have otherwise received for the 5 or 14 calendar day period of the applicable leave.<\/p>\n<p>The FAQs also explain that an eligible employee who is currently under a mandatory or precautionary order of quarantine or isolation that was issued prior to the enactment of the Act (March 18, 2020) is still entitled to use emergency sick leave under the Act. In other words, an eligible employee who began his\/her period of quarantine or isolation prior to March 18, 2020 and is still under such quarantine or isolation may apply for his\/her emergency sick leave entitlement retroactively to cover the period commencing on March 18, 2020.<\/p>\n<p><strong><b>Required Documentation and Submission Process <\/b><\/strong><\/p>\n<p>Both the Guidance and FAQs provide important information regarding the documentation eligible employees must submit in order to utilize benefits provided by the Act.<\/p>\n<p><em><i>No documentation required to use emergency sick leave <\/i><\/em><\/p>\n<p>The NYSDOL clarifies that eligible employees <u>do not<\/u> need to submit documentation before using emergency sick leave.<\/p>\n<p><em><i>Documentation required to use NYPFL and\/or short-term disability benefits\u00a0 <\/i><\/em><\/p>\n<p>After an employee exhausts his\/her emergency paid sick leave pursuant to the Act, the employee will be eligible to apply for NYPFL benefits and short-term disability benefits for the remaining period of the order of quarantine or isolation.\u00a0 To apply for NYPFL benefits and\/or short-term disability benefits under the Act, all eligible employees must submit:<\/p>\n<ul>\n<li>a completed \u201cRequest for Paid Family Leave\u201d form (\u201cForm PFL-1\u201d); and<\/li>\n<li>a copy of the mandatory or precautionary order of quarantine or isolation.<\/li>\n<\/ul>\n<p>In addition to the above, an employee requesting NYPFL and\/or short-term disability benefits for himself\/herself must also complete a form titled \u201c<em><i>Request for COVID-19 Quarantine DB\/PFL<\/i><\/em>.\u201d<\/p>\n<p>Similarly, an employee requesting NYPFL benefits to care for his\/her child, who is subject to a quarantine or isolation order, must complete a form titled \u201c<em><i>Request for COVID-19 Quarantine PFL \u2013 Child<\/i><\/em>.\u201d<\/p>\n<p>A link to the full set of forms that an eligible employee seeking NYPFL and\/or short-term disability benefits must complete (including the Form PFL-1) are located here:<\/p>\n<ul>\n<li>Employee requesting NYPFL\/short-term disability benefits for himself\/herself: <u><a href=\"http:\/\/docs.paidfamilyleave.ny.gov\/content\/main\/forms\/PFLDocs\/scovid19.pdf\">http:\/\/docs.paidfamilyleave.ny<\/a><\/u><\/li>\n<li>Employee requesting NYPFL benefits to care for his\/her child: <u><a href=\"http:\/\/docs.paidfamilyleave.ny.gov\/content\/main\/forms\/PFLDocs\/ccovid19.pdf\">http:\/\/docs.paidfamilyleave.ny<\/a><\/u><\/li>\n<\/ul>\n<p><em><i>Submission Process <\/i><\/em><\/p>\n<p>After completing the \u201cemployee sections\u201d of the appropriate forms, the eligible employee must submit the forms to his\/her employer.<\/p>\n<p>Employers must then complete the \u201cemployer sections\u201d of the forms, which include filling in the following information: (1) the employee\u2019s average weekly wage, and (2) an attestation that the employee has used any quarantine paid sick time and is not able to work remotely.<\/p>\n<p>Employers are required to return the completed forms to the employee within three business days. The employee must then submit the completed forms, as well as the order of quarantine or isolation, to the employer\u2019s disability and paid family leave insurance carrier. If the employer fails to return the completed form within three business days, the employee may proceed with submitting the forms to the insurance carrier.<\/p>\n<p><strong><b>NY School Closures Do Not Guarantee Entitlement to NYPFL Benefits\u00a0 <\/b><\/strong><\/p>\n<p>The FAQs also clarify when an eligible employee may utilize NYPFL benefits to care for his\/her child who is home because of a school closure. Specifically, the FAQs state that if a child\u2019s school is closed due to a mandatory or precautionary order of quarantine or isolation issued by the State, department of health, local board of health, or government entity, the employee may be eligible to utilize NYPFL benefits. However, if a child\u2019s school is closed for preventative social distancing, the FAQs suggest that the employee check with his\/her employer to see if there are other benefits he\/she may use instead.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>The New York State Department of Labor (\u201cNYSDOL\u201d) has issued guidance (the \u201cGuidance\u201d)\u00a0and answers to frequently asked questions (\u201cFAQs\u201d)\u00a0relating to various aspects of the newly-enacted legislation providing emergency sick leave, expanded New York Paid Family Leave (\u201cNYPFL\u201d) and expanded short-term disability benefits to certain employees unable to work because of COVID-19. Our previous analysis of [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":84,"featured_media":3085,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,2629],"tags":[3291,1554,106,3315,498],"coauthors":[343,3177],"class_list":["post-3082","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-employment-law","category-new-york-developments","tag-covid-19","tag-employment-law","tag-new-york","tag-nysdol","tag-sick-leave"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/3082","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/84"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=3082"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/3082\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/3085"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=3082"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=3082"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=3082"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=3082"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2958,"date":"2020-03-04T13:02:36","date_gmt":"2020-03-04T18:02:36","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2958"},"modified":"2020-03-04T13:02:36","modified_gmt":"2020-03-04T18:02:36","slug":"ninth-circuit-issues-a-second-en-banc-decision-regarding-prior-salary-considerations-in-rizo-v-yovino-re-do","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2020\/03\/04\/ninth-circuit-issues-a-second-en-banc-decision-regarding-prior-salary-considerations-in-rizo-v-yovino-re-do\/","title":{"rendered":"Ninth Circuit Issues A Second En Banc Decision Regarding Prior Salary Considerations In Rizo v. Yovino Re-Do"},"content":{"rendered":"<p>In yet another development in the closely watched case of <em>Rizo v. Yovino<\/em>, the en banc Ninth Circuit <a href=\"https:\/\/www.law360.com\/articles\/1248270\/attachments\/0\">ruled<\/a> that employers may not defeat a plaintiff\u2019s <em>prima facie <\/em>case under the Equal Pay Act (EPA) by arguing prior pay is a \u201cfactor other than sex\u201d within the meaning of the statute. By doing so, the Ninth Circuit reaches the same result as the previous opinion penned by the late Judge Stephen Reinhardt before his passing in 2018, including overruling <em>Kouba v. Allstate<\/em>, a prior Ninth Circuit opinion that held that prior pay could justify pay differentials in combination with other factors, and if relied upon reasonably and to effectuate a business policy. The majority opinion further holds that as a matter of statutory interpretation, a \u201cfactor other than sex\u201d within the meaning of the EPA must be \u201cjob related,\u201d yet it also makes clear that the EPA does <em>not <\/em>prohibit employers from considering prior pay in making starting pay offers (and in this regard differentiates the opinion from California\u2019s salary history ban). Two separate concurring opinions agree with the result, but they criticize the majority opinion for giving too narrow a reading of the EPA\u2019s fourth \u201ccatch all\u201d defense and for embracing a view of prior pay that puts the Ninth Circuit at odds with other circuits and guidance from the U.S. Equal Employment Opportunity Commission (EEOC).<!--more--><\/p>\n<p>The full implications of the decision remain to be seen. For several employers, the impact may be minimal. For example, in order to comply with salary history bans in California, New York, and around the country, many employers no longer inquire about or rely upon prior pay to set starting pay in any event. Most salary history bans also contain an exception, however, if the applicant volunteers his or her current or prior pay. In light of the <em>Rizo <\/em>decision, employers may want to determine if relying on prior pay \u2013 even if volunteered \u2013 creates any pay disparities among incumbent employees who perform equal work. Employers who previously relied upon prior pay before salary history bans took effect may also want to assess whether that prior practice contributes to current pay disparities.<\/p>\n<p>One thing is certain, though: courts and legislatures continue to narrow the ways in which employers may use prior pay in setting compensation and in litigation, thereby heightening the need for all employers to continually review their compensation practices and to conduct proactive, privileged pay audits on an ongoing basis.<\/p>\n<p><u>Background<\/u><\/p>\n<p>In <em>Rizo<\/em>, the Fresno County school district employed plaintiff Aileen Rizo as a math consultant. In 2012, she learned that the school district paid a newly hired male math consultant a higher salary than her, and she soon discovered that the school district paid other male math consultants more than her in general.\u00a0When she complained, the school district explained that it determined all starting salaries for teachers based on the person\u2019s most recent prior salary plus an automatic five percent increase.<\/p>\n<p>Rizo sued, alleging the policy resulted in impermissible sex discrimination under the EPA. While the school district conceded that Rizo was in fact paid less than men doing the same job, it nevertheless moved for summary judgment on the grounds that the pay differential was based on a \u201cfactor other than sex,\u201d\u00a0<em>i.e.<\/em>, Rizo and her male comparator\u2019s prior salaries, and thus was permissible under the EPA.\u00a0The school district asserted four business reasons for following the standard operating procedure that relied on prior pay: (1) it was objective; (2) it encouraged candidates to leave their current jobs for employment with the school district; (3) it prevented favoritism and encouraged consistency in its application; and (4) it was a \u201cjudicious use of taxpayer dollars.\u201d\u00a0The district court denied the school district\u2019s motion, holding that prior pay does not qualify as a factor other than sex under the EPA because it can perpetuate a discriminatory wage disparity between men and women. However, it certified an interlocutory appeal on the question of whether \u201cas a matter of law under the EPA, 29 U.S.C. \u00a7 206(d), an employer subject to the EPA may rely on prior salary alone when setting an employee\u2019s starting salary.\u201d<\/p>\n<p>On appeal, a <a href=\"https:\/\/blogs.orrick.com\/equalpaypulse\/2017\/05\/04\/schools-out-ninth-circuit-holds-prior-salary-of-teachers-can-justify-pay-differentials\/\">panel of the Ninth Circuit<\/a> reaffirmed its previous 1982 decision, <em>Kouba v. Allstate<\/em>, and held that an employer may rely on prior salary if it \u201cshow[s] that the factor \u2018effectuate[s] some business policy\u2019\u201d and that the employer \u201cuse[s] the factor reasonably in light of the employer\u2019s stated purpose as well as other practices.\u2019\u201d The full Ninth Circuit in turn granted en banc review, and in its <a href=\"https:\/\/blogs.orrick.com\/equalpaypulse\/2018\/04\/13\/en-banc-ninth-circuit-throws-in-its-two-cents-regarding-use-of-prior-salary-information-to-justify-pay-differentials\/\">2018 decision<\/a>, written by the late Judge Reinhardt, the Ninth Circuit overruled <em>Kouba v. Allstate<\/em> and rejected the school district\u2019s defense. In his opinion, Judge Reinhardt wrote: \u201cThe question before us is \u2026 simple: can an employer justify a wage differential between male and female employees by relying on prior salary? \u2026 Based on the text, history and purpose of the Equal Pay Act, the answer is clear: No.\u201d Judge Reinhardt reasoned that \u201c[t]o hold otherwise\u2014to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum\u2014would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.\u201d Instead, the Ninth Circuit concluded that the \u201cfactor other than sex\u201d defense is limited to \u201clegitimate, job-related factors such as a prospective employee\u2019s experience, educational background, ability, or prior job performance.\u201d In doing so, the majority appeared to cabin its holding to the facts of the case before it in which the school district had an express policy of relying on prior salary for all teaching positions.<\/p>\n<p>Then, at the <a href=\"https:\/\/blogs.orrick.com\/equalpaypulse\/2018\/10\/12\/business-groups-urge-u-s-supreme-court-to-review-ninth-circuit-decision-rejecting-use-of-prior-salary-to-set-pay\/\">urging of the school district and interested business groups<\/a>, the U.S. Supreme Court granted certiorari to review the case. In 2019, the Supreme Court <a href=\"https:\/\/blogs.orrick.com\/equalpaypulse\/2019\/03\/06\/judges-are-appointed-for-life-not-for-eternity-scotus-rules-that-judges-vote-in-equal-pay-case-does-not-count-due-to-judges-passing\/\">vacated<\/a> the Ninth Circuit\u2019s decision, reasoning that the appellate court should not have counted Judge Reinhardt\u2019s vote because he passed away before the decision was issued. Without Judge Reinhardt\u2019s vote, only 5 of the other 10 members of the panel would have approved his opinion. Therefore, there was no true majority opinion absent Reinhardt\u2019s vote, and the Ninth Circuit erred in releasing the opinion.<\/p>\n<p><u>The Ninth Circuit Re-Examines the Issue<\/u><\/p>\n<p>On remand, the Ninth Circuit continues to agree with Judge Reinhardt\u2019s vacated opinion. Writing for the majority, Judge Morgan Christen first concludes that the EPA\u2019s fourth \u201ccatch-all\u201d defense of a \u201cfactor other than sex\u201d must be job-related. She then reasons that an employee\u2019s prior pay at a different job is not related to her current job. She explains, \u201cThe express purpose of the [EPA] was to eradicate the practice of paying women less simply because they are women. . . . Allowing employers to escape liability by relying on employees\u2019 prior pay would defeat the purpose of the act and perpetuate the very discrimination the EPA aims to eliminate.\u201d Furthermore, the majority reasons that \u201csetting wages based on prior pay risks perpetuating the history of sex-based wage discrimination.\u201d As a result, the court has revived Rizo\u2019s lawsuit and allowed it to proceed further.<\/p>\n<p>Not all of the Ninth Circuit\u2019s judges agree with the rationale behind this result, however, further muddying the decision\u2019s instructive value. Judge Margret McKeown, joined by Judges Richard Tallman and Mary Murguia, criticizes the majority in her concurrence for \u201cembrac[ing] a rule not adopted by any other circuit\u2014prior salary may never be used, even in combination with other factors, as a defense under the Equal Pay Act.\u201d Judge McKeown notes that the circuits that have considered this issue have either outright rejected the majority\u2019s approach or declined to adopt it. Furthermore, she criticizes the majority\u2019s position for being at odds with guidance from the EEOC, which provides in its <a href=\"https:\/\/www.eeoc.gov\/policy\/docs\/compensation.html\">Compliance Manual<\/a>: \u201cUsing prior salary along with valid job-related factors such as education, past performance and training may provide a lawful benchmark for starting salary in appropriate cases.\u201d Lastly, Judge McKeown chastises the majority for failing to account for \u201cthe realities of today\u2019s dynamic workforce, choosing instead to view the workplace in a vacuum.\u201d<\/p>\n<p>Judge Consuelo Callahan also provides a separate concurrence, joined by Judges Tallman and Carolos Bea. In her concurrence, she states that in holding that wages associated with an employee\u2019s prior job can never be considered as a factor in determining pay, the majority \u201cfails to appreciate Supreme Court precedent and creates an amorphous and unnecessary new standard for interpreting that subsection [of the EPA], which ignores the realities and dynamic nature of business.\u201d Judge Callahan fears that by doing so, the majority may inadvertently \u201chinder rather than promote equal pay for equal work.\u201d Instead, Judge Callahan would have adopted the approach used in other circuit courts finding that when employers establish salary based on a multifactor salary system that includes prior salary, employers may rebut the presumption that the system is based on gender.<\/p>\n<p><u>Implications of the Decision<\/u><\/p>\n<p>As noted above, the implications of the decision remain to be seen. Given that it puts the Ninth Circuit at odds with some of its sister circuits in terms of its interpretation of the EPA and determination that even if in conjunction with other factors, prior pay cannot justify pay differentials under the statute, the case may be heading to the Supreme Court a second time. Stay tuned for updates.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>In yet another development in the closely watched case of Rizo v. Yovino, the en banc Ninth Circuit ruled that employers may not defeat a plaintiff\u2019s prima facie case under the Equal Pay Act (EPA) by arguing prior pay is a \u201cfactor other than sex\u201d within the meaning of the statute. By doing so, the [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":70,"featured_media":2959,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[628,39,11,24],"tags":[2579,3273,239,244,2922,108,3274,2532,2371,3275],"coauthors":[144,1246,1102],"class_list":["post-2958","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-california-developments","category-eeoc","category-employment-law","category-wage-and-hour","tag-circuit-split","tag-eeoc-compliance-manual","tag-equal-pay-2","tag-equal-pay-act","tag-factor-other-than-sex","tag-ninth-circuit","tag-prior-pay","tag-prior-salary","tag-wage-differential","tag-wage-disparity"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2958","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/70"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2958"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2958\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/2959"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2958"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2958"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2958"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2958"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2825,"date":"2020-01-07T12:57:04","date_gmt":"2020-01-07T17:57:04","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2825"},"modified":"2020-09-15T18:05:07","modified_gmt":"2020-09-15T22:05:07","slug":"try-to-restrain-yourself-california-is-temporarily-restrained-from-enforcing-arbitration-ban","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2020\/01\/07\/try-to-restrain-yourself-california-is-temporarily-restrained-from-enforcing-arbitration-ban\/","title":{"rendered":"Try To Restrain Yourself: California Is Temporarily Restrained From Enforcing Arbitration Ban"},"content":{"rendered":"<p>Remember California\u2019s new ban on mandatory workplace arbitration agreements? The Eastern District of California has put it on ice, granting a temporary restraining order against the ban\u2019s enforcement. As a refresher, and as we wrote about <u><a href=\"https:\/\/blogs.orrick.com\/employment\/2019\/10\/21\/cant-we-just-agree-california-codifies-its-hostility-towards-arbitration-with-ab-51\/\">here<\/a><\/u>, on October 10, 2019, California Governor Gavin Newsom signed into law California\u2019s latest afront on workplace arbitration\u2014<u><a href=\"https:\/\/leginfo.legislature.ca.gov\/faces\/billTextClient.xhtml?bill_id=201920200AB51\">AB 51<\/a><\/u>. Under AB 51, employers may not, \u201cas a condition of employment, continued employment, or the receipt of any employment-related benefit, require an applicant or employee to waive any right, forum, or procedure\u201d for FEHA and Labor Code claims. Violations of the new statute carry hefty consequences, including criminal penalties. Many employers see arbitration agreements as necessary to manage employment disputes and an outright ban on this efficient process strongly affects their bottom line. The ban was scheduled to go into effect on January 1, 2020, but the TRO put enforcement on hold for now.<!--more--><\/p>\n<p>The TRO stems from a <u><a href=\"https:\/\/www.chamberlitigation.com\/sites\/default\/files\/cases\/files\/19191919\/Complaint%20--%20U.S.%20Chamber%20v.%20Becerra%20%28USDC%20-%20Eastern%20District%20of%20California%29.pdf\">challenge<\/a><\/u> by the United States and California Chambers of Commerce, along with other organizations such as the California Retailers Association and the National Association of Security Companies, to the validity of the new arbitration restrictions. The plaintiffs in that challenge argue that AB 51 is preempted by the Federal Arbitration Act and is thus unconstitutional. The <u><a href=\"https:\/\/www.chamberlitigation.com\/sites\/default\/files\/cases\/files\/19191919\/Complaint%20--%20U.S.%20Chamber%20v.%20Becerra%20%28USDC%20-%20Eastern%20District%20of%20California%29.pdf\">complaint<\/a><\/u> requests declaratory and injunctive relief to stop AB 51 from being enforced against arbitration agreements that are governed by the FAA. The plaintiffs moved for a temporary restraining order, which the court granted on December 30, 2019, noting that the \u201cplaintiffs raise serious questions regarding whether the challenged statute is preempted by the Federal Arbitration Act.\u201d The plaintiffs also moved for a <u><a href=\"https:\/\/www.chamberlitigation.com\/sites\/default\/files\/cases\/files\/19191919\/Plaintiffs%27%20Notice%20of%20Motion%20and%20Motion%20for%20a%20Preliminary%20Injunction%20--%20U.S.%20Chamber%20v.%20Becerra%20%28USDC%20-%20Eastern%20District%20of%20California%29.pdf\">preliminary injunction<\/a><\/u> to stop AB 51\u2019s enforcement until the preemption issue is fully resolved. A hearing on the preliminary injunction is currently set for January 10, 2020.<\/p>\n<p>The preemption challenge and TRO do not come as a surprise. In 2018, Governor Brown vetoed a similar anti-arbitration bill, explaining that the bill \u201cplainly violates federal law.\u201d The legislative history and statutory text of AB 51 make clear that its proponents anticipated this very argument. The statute explicitly states, \u201cNothing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act.\u201d Cal. Lab. Code \u00a7 432.6(f). And proponents claim that AB 51, unlike previous iterations of a ban on mandatory arbitration, does not prohibit, restrict, or discourage anyone from entering into a mandatory arbitration agreement, if an employee affirmatively consents to do so freely and voluntarily. According to AB 51\u2019s proponents, the bill merely provides that an employee cannot be forced to sign an arbitration agreement and, if the employee elects not to, the employer cannot retaliate against the employee. Proponents also argue that, once an arbitration agreement has been signed, the bill does not apply to its enforcement, thus saving it from a preemption challenge. <em><i>See generally <\/i><\/em>July 8, 2019 Report from the Senate Judiciary Committee. Despite these arguments, the bill\u2019s challengers have shown that they are ready to take it to the mat.<\/p>\n<p>While the legal challenge is pending, employers should continue to review their arbitration agreements carefully and consult with legal counsel before making changes. Stay tuned for updates.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>Remember California\u2019s new ban on mandatory workplace arbitration agreements? The Eastern District of California has put it on ice, granting a temporary restraining order against the ban\u2019s enforcement. As a refresher, and as we wrote about here, on October 10, 2019, California Governor Gavin Newsom signed into law California\u2019s latest afront on workplace arbitration\u2014AB 51. [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":558,"featured_media":2827,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[62,628,30,11,2923,24],"tags":[3215,481,321,3216,1024,3217,3218],"coauthors":[1898,2527],"class_list":["post-2825","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-arbitration","category-california-developments","category-client-alert","category-employment-law","category-sexual-harassment","category-wage-and-hour","tag-ab-51","tag-arbitration-2","tag-arbitration-agreement","tag-ca-legislature","tag-preemption","tag-preliminary-injunction","tag-tro"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2825","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/558"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2825"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2825\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/2827"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2825"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2825"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2825"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2825"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2821,"date":"2019-12-23T11:15:35","date_gmt":"2019-12-23T16:15:35","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2821"},"modified":"2019-12-23T11:16:17","modified_gmt":"2019-12-23T16:16:17","slug":"cftc-whistleblower-program-ends-the-year-with-another-seven-figure-bounty-award","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2019\/12\/23\/cftc-whistleblower-program-ends-the-year-with-another-seven-figure-bounty-award\/","title":{"rendered":"CFTC Whistleblower Program Ends the Year with Another Seven-Figure Bounty Award"},"content":{"rendered":"<p>On December 19, 2019, the\u00a0<u><a href=\"https:\/\/cftc.gov\/\">U.S. Commodity Futures Trading Commission<\/a><\/u>\u00a0(CFTC) announced that it will <u><a href=\"https:\/\/whistleblower.gov\/sites\/whistleblower\/files\/2019-12\/20-WB-02.pdf?utm_medium=email&amp;utm_source=govdelivery\">award<\/a><\/u> more than $1 million to an individual whose tip helped expose a securities fraud scheme and eventually led to the CFTC filing charges. The individual first provided the information through the employer\u2019s internal compliance program, which the employer submitted to another regulator, and the individual subsequently provided that information directly to the CFTC.\u00a0 The award is significant because it recognizes that individuals are eligible to receive an award for: (1)\u00a0being the original source of information the CFTC receives from another regulator; and (2) a tip that leads to evidence of a violation the CFTC ultimately charges, even if the reported conduct itself does not form the basis for those charges.<!--more--><\/p>\n<p>In\u00a0<u><a href=\"https:\/\/www.cftc.gov\/PressRoom\/PressReleases\/8098-19?utm_medium=email&amp;utm_source=govdelivery\">announcing<\/a><\/u>\u00a0the award, the CFTC\u2019s Director of Enforcement James McDonald stated, \u201cToday\u2019s award shows how referrals from other regulators can have a meaningful impact on the Commission\u2019s enforcement program. . . . We are committed to continuing to work with other regulators to maximize the impact and effectiveness of our enforcement and whistleblower programs.\u201d Likewise, CFTC Whistleblower Office Director Christopher Ehrman stated, \u201cAs the specific facts and circumstances of this matter demonstrate, the whistleblower does not have to identify the exact wrongdoing the CFTC ultimately charges\u2014it is enough for their information to lead CFTC investigators directly to evidence of one or more of the agency\u2019s claims.\u00a0 Here, the whistleblower identified a problem in one area, and our Division of Enforcement used that knowledge and the whistleblower\u2019s subsequent assistance to uncover illegality in another.\u201d<\/p>\n<p>Since issuing its first award in 2014, the CFTC has awarded approximately $100 million to whistleblowers, and the agency\u2019s covered actions associated with those awards have resulted in sanctions totaling more than $800 million.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>On December 19, 2019, the\u00a0U.S. Commodity Futures Trading Commission\u00a0(CFTC) announced that it will award more than $1 million to an individual whose tip helped expose a securities fraud scheme and eventually led to the CFTC filing charges. The individual first provided the information through the employer\u2019s internal compliance program, which the employer submitted to another [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":71,"featured_media":2822,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2710,25],"tags":[712,931,714,3203,3214,1561],"coauthors":[88,236,1102],"class_list":["post-2821","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-dodd-frank-act","category-whistleblower","tag-bounty-award","tag-cftc","tag-dodd-frank-act","tag-securities-fraud","tag-tip","tag-whistleblower"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2821","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/71"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2821"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2821\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/2822"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2821"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2821"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2821"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2821"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2814,"date":"2019-12-13T15:44:57","date_gmt":"2019-12-13T20:44:57","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2814"},"modified":"2020-10-14T10:45:34","modified_gmt":"2020-10-14T14:45:34","slug":"an-ounce-of-prevention-is-worth-a-pound-of-cure-california-dfeh-clarifies-sexual-harassment-prevention-training-requirements","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2019\/12\/13\/an-ounce-of-prevention-is-worth-a-pound-of-cure-california-dfeh-clarifies-sexual-harassment-prevention-training-requirements\/","title":{"rendered":"An Ounce of Prevention Is Worth a Pound of Cure: California DFEH Clarifies Sexual Harassment Prevention Training Requirements"},"content":{"rendered":"<p>California\u2019s Department of Fair Employment and Housing (\u201cDFEH\u201d) has updated its Employer <a href=\"https:\/\/www.dfeh.ca.gov\/wp-content\/uploads\/sites\/32\/2018\/12\/SB_1343_EmployerFAQ.pdf\">FAQ guidance<\/a> addressing the new sexual harassment prevention training requirements that were initially <a href=\"https:\/\/leginfo.legislature.ca.gov\/faces\/billTextClient.xhtml?bill_id=201720180SB1343\">set to go into effect<\/a> on January 1, 2020.\u00a0 However, an amendment to the bill earlier this year moved the effective date to January 1, 2021.\u00a0 As we <a href=\"https:\/\/blogs.orrick.com\/employment\/2018\/10\/04\/california-takesthelead-on-harassment-laws-what-does-it-mean-for-employers\/\">reported<\/a> when the initial bill was passed last year, the law expands harassment training requirements from employers with fifty or more employees to those with five or more employees, and from requiring training for supervisory employees only to requiring training for non-supervisory employees as well.\u00a0 The training must be repeated once every two years.<!--more--><\/p>\n<p>The new guidance clarifies several important issues.\u00a0 <em>First<\/em>, it defines what is meant by the requirement that an employer must provide \u201ceffective interactive training.\u201d\u00a0 Such training may include classroom training, computer-based training that is individualized and interactive, or a webinar training taught in real time.\u00a0 The guidance specifies additional requirements for each type of training.<\/p>\n<p><em>Second<\/em>, the guidance clarifies how the requirements apply to seasonal or temporary workers, explaining that employers are not required to train employees \u201cwho are employed for fewer than 30 calendar days and work for fewer than 100 hours.\u201d\u00a0 Moreover, if a temporary employee is employed by a temporary services employer, the temporary services employer must provide training for the temporary employee.<\/p>\n<p><em>Third<\/em>, the guidance explains that employers do not need to train non-California employees, independent contractors, volunteers, or unpaid interns, but people falling within these categories must be counted in determining whether the employer meets the five-employee threshold for training.\u00a0 As an example, the guidance states that \u201cif an employer has 2 full-time employees and 6 unpaid interns, the employer would meet the training threshold requirement and would need to ensure the [2] full-time employees receive training[.]\u201d<\/p>\n<p><em>Fourth<\/em>, the guidance states that if an employee has already received the training from a current, prior, alternate, or joint employer within the previous two years, the employee does not need to retake it, but the current employer must ensure that the training was completed.\u00a0 Doing so \u201cmay require verifying compliance from the prior, alternate, or joint employer.\u201d\u00a0 Additionally, the employee must read and acknowledge receipt of the current employer\u2019s antiharassment policy.<\/p>\n<p>The guidance also addresses other miscellaneous questions, including questions about how to become a trainer, poster requirements, documentation, and payment for the training.\u00a0 For employers interested in training resources, the DFEH will have online training courses available by early 2020, and in the meantime, DFEH is offering a Sexual Harassment and Abusive Conduct Prevention Training <a href=\"https:\/\/www.dfeh.ca.gov\/wp-content\/uploads\/sites\/32\/2018\/12\/SexualHarassmentandAbusiveConductPreventionTrainingToolkit.pdf\">Toolkit<\/a>.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>California\u2019s Department of Fair Employment and Housing (\u201cDFEH\u201d) has updated its Employer FAQ guidance addressing the new sexual harassment prevention training requirements that were initially set to go into effect on January 1, 2020.\u00a0 However, an amendment to the bill earlier this year moved the effective date to January 1, 2021.\u00a0 As we reported when [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":62,"featured_media":2815,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[628,11],"tags":[3213,3205,3204,3210,3209,3208,3206,3207,3212,911,2221,972,3211,691,1720,2908,962],"coauthors":[59,2850],"class_list":["post-2814","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-california-developments","category-employment-law","tag-anti-harassment","tag-effective-interactive-training","tag-interactive-training","tag-seasonal-employee","tag-seasonal-worker","tag-temp-employee","tag-temp-worker","tag-temporary-worker","tag-antiharassment","tag-department-of-fair-employment-and-housing","tag-dfeh","tag-independent-contractor","tag-intern","tag-sexual-harassment","tag-temporary-employee","tag-training","tag-volunteer"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2814","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/62"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2814"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2814\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/2815"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2814"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2814"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2814"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2814"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2809,"date":"2019-12-09T11:21:05","date_gmt":"2019-12-09T16:21:05","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2809"},"modified":"2019-12-09T11:21:05","modified_gmt":"2019-12-09T16:21:05","slug":"the-whistle-keeps-blowing-sec-whistleblower-office-releases-its-2019-annual-report","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2019\/12\/09\/the-whistle-keeps-blowing-sec-whistleblower-office-releases-its-2019-annual-report\/","title":{"rendered":"The Whistle Keeps Blowing: SEC Whistleblower Office Releases Its 2019 Annual Report"},"content":{"rendered":"<p>The SEC\u2019s Office of the Whistleblower (\u201cOWB\u201d) released its <u><a href=\"https:\/\/www.sec.gov\/files\/OW_2019AR_FINAL_1.pdf\">Fiscal Year 2019 Annual Report<\/a><\/u> (the \u201cReport\u201d) to Congress on the Dodd-Frank Whistleblower Program on November 15, 2019. The Report analyzes the tips received over the last twelve months by the OWB, provides additional information about the whistleblower awards to date, and discusses the OWB\u2019s efforts to combat retaliation and other actions that muzzle whistleblowers. To date, the SEC has recovered over $2 billion in total monetary sanctions from its enforcement actions arising from whistleblower tips, including more than $1 billion in disgorgement of ill-gotten gains and interests, and it has or is scheduled to return almost $500 million to harmed investors.<!--more--><\/p>\n<p><strong><b>Breakdown of Tips Received in FY 2019<\/b><\/strong><\/p>\n<p>The OWB reported a minor decrease in the number of whistleblower tips and complaints that it received in 2019\u20135,212 tips in 2019 compared to 5,282 tips in 2018. This was the second largest number of whistleblower tips the Commission has received in a fiscal year. Overall, the most common types of allegations in 2019 were Corporate Disclosure and Financials (21%), Offering Fraud (13%), and Manipulation (10%). The SEC also added Cryptocurrency to the TCR System as an allegation type in the fourth quarter of FY2018, and almost 6% of the tips received related to this allegation.\u00a0 Most whistleblowers, however, selected \u201cOther\u201d when asked to describe their allegations.<\/p>\n<p>The OWB received whistleblower tips and complaints from 49 states (all except Wyoming), the District of Columbia, Puerto Rico, and the Virgin Islands. Domestically, the largest number of whistleblower complaints and tips were from California (546), Pennsylvania (332), New York (290), Texas (245), and Florida (241). Additionally, the OWB received whistleblower tips from individuals located in 70 foreign countries. Noticeably, there was a large drop in the number of international whistleblower tips in 2019\u2014479 tips in 2019 compared to 651 tips in 2018\u2014which is a roughly 26% decrease.\u00a0 The countries from which the\u00a0largest number of tips originated internationally were Canada (71), Germany (44), the United Kingdom (44), the People\u2019s Republic of China (32), and Australia (28), with Brazil, Chile, Hong Kong, India, the Netherlands, Russia, and South Africa being other countries from which the SEC received more than 10 tips.<\/p>\n<p><strong><b>Profiles of Bounty Recipients<\/b><\/strong><\/p>\n<p>Overall, the SEC awarded nearly $60 million to 8 individuals in FY19, bringing the total payout under the program to approximately $387 million to 67 individuals in connection with 55 covered actions since the program\u2019s inception. Three bounty award recipients in FY19 were located abroad or reported conduct that was occurring abroad. Three award recipients reported conduct that was affecting retail investors, \u201cfurthering a Commission priority to protect the Main Street investor.\u201d The awards in FY19 included the SEC\u2019s third largest award to date\u2014a $37 million award to a whistleblower who, according to the Report, provided \u201csignificant evidence and assistance that enabled the agency to bring the matter to an efficient and successful resolution.\u201d The Report notes that \u201cWhile all awards are important to the Commission and to whistleblowers, these larger awards reflect the significance of the information that whistleblowers are providing to the Commission and are testaments to the whistleblower program\u2019s success.\u201d<\/p>\n<p>The Report states that 69% of award recipients were current or former insiders of the company about which they reported violations.\u00a0Of those, approximately 85% either raised their concerns internally first or knew that the company was otherwise aware of the issues before they reported the violations to the SEC.\u00a0The award recipients who were not current or former employees obtained their information either because they were (1) victims of the fraud, (2) professionals in a related industry, or (3) had a personal relationship with the alleged wrongdoer.<\/p>\n<p><strong><b>Additional OWB Priorities<\/b><\/strong><\/p>\n<p>This year\u2019s Report reaffirmed the OWB\u2019s continued focus on protecting whistleblowers from retaliation and other corporate actions that could dissuade whistleblowers from communicating with the SEC.\u00a0To date, the SEC has brought 11 enforcement actions or administrative proceedings for violations of Rule 21F-17, some of which we have reported on <u><a href=\"https:\/\/blogs.orrick.com\/employment\/2016\/08\/10\/sec-bounty-hunters-take-heart-sec-fines-company-265000-for-using-severance-agreements-that-provided-a-waiver-of-any-monetary-recovery-for-filing-a-tip\/\">here<\/a><\/u> and <u><a href=\"https:\/\/blogs.orrick.com\/employment\/2015\/04\/02\/sec-makes-good-on-its-promise-to-un-muzzle-employees-from-cooperating-in-sec-investigations\/\">here<\/a><\/u>.\u00a0 The OWB also continues to conduct <u><a href=\"https:\/\/blogs.orrick.com\/employment\/2019\/08\/02\/regulators-offer-insights-into-sec-cftc-and-osha-whistleblower-programs-trends-and-priorities\/\">public outreach efforts<\/a><\/u> to educate stakeholders about the SEC\u2019s whistleblower program.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>The SEC\u2019s Office of the Whistleblower (\u201cOWB\u201d) released its Fiscal Year 2019 Annual Report (the \u201cReport\u201d) to Congress on the Dodd-Frank Whistleblower Program on November 15, 2019. The Report analyzes the tips received over the last twelve months by the OWB, provides additional information about the whistleblower awards to date, and discusses the OWB\u2019s efforts [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":71,"featured_media":1930,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2710,11,25],"tags":[1592,1160,1513,1571,3203,1561,258],"coauthors":[88,236,1102],"class_list":["post-2809","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-dodd-frank-act","category-employment-law","category-whistleblower","tag-bounty-awards","tag-owb","tag-rule-21f","tag-sec","tag-securities-fraud","tag-whistleblower","tag-whistleblowing"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2809","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/71"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2809"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2809\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/1930"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2809"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2809"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2809"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2809"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2773,"date":"2019-11-11T12:47:27","date_gmt":"2019-11-11T17:47:27","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2773"},"modified":"2019-11-11T12:47:27","modified_gmt":"2019-11-11T17:47:27","slug":"the-golden-state-expands-lactation-accommodations-for-working-mothers","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2019\/11\/11\/the-golden-state-expands-lactation-accommodations-for-working-mothers\/","title":{"rendered":"The Golden State Expands Lactation Accommodations For Working Mothers"},"content":{"rendered":"<p>California Governor Gavin Newsom recently signed into law <a href=\"http:\/\/leginfo.legislature.ca.gov\/faces\/billNavClient.xhtml?bill_id=201920200SB142\">SB 142<\/a>, significantly expanding employers\u2019 obligations to provide break time and lactation room accommodations for working mothers. Following in the footsteps of <a href=\"https:\/\/blogs.orrick.com\/employment\/2017\/09\/08\/expanded-protections-for-working-mothers-in-san-francisco\/\">San Francisco\u2019s Lactation in the Workplace Ordinance<\/a>, SB 142 imposes a host of new requirements regarding lactation accommodation spaces, policies, and break time:<!--more--><\/p>\n<ul style=\"clear: both;margin-top: 20px\">\n<li><strong><u>Not Just Any Room<\/u><\/strong><strong>.<\/strong> Under current California law, employers are required to make reasonable efforts to provide lactating employees with a room or location (other than a bathroom) close to the employee\u2019s work area to express breast milk in private. SB 142 expands these protections, requiring that the lactation room also (1) be shielded from view and free from intrusion while the employee is lactating; (2) be safe, clean, and free of hazardous materials; (3) contain a surface on which to place a breast pump and personal items; (4) contain a place to sit; and (5) have access to electricity or alternative devices, such as extension cords or charging stations, needed to operate an electric or battery-powered breast pump. Employers must also provide access to a sink with running water and a refrigerator or other cooling device for storing milk near the employee\u2019s workplace. SB 142 further provides that, where a lactation room also is used for other purposes, lactation must take precedence over other uses during the time in which an employee is using it for lactation purposes.<\/li>\n<li><strong><u>Detailed Policy Requirements<\/u><\/strong>. An entirely new requirement under SB 142 is that employers must develop and implement a lactation accommodation policy that includes: (1) a statement about the right to request lactation accommodation; (2) the process by which an employee makes the request; (3) an employer\u2019s obligation to respond to the request; and (4) a statement about an employee\u2019s right to file a Labor Commissioner complaint for violations of the law. Employers must include the lactation policy in an employee handbook or set of policies that the employer makes available to all employees. Employers also must <u>distribute<\/u> the policy to new employees upon hire and when an employee inquires into or requests parental leave.<\/li>\n<li><strong><u>Breaks Whenever Needed<\/u><\/strong>. Under existing law, lactation breaks shall, if possible, run concurrently with any break time already provided to the employee. SB 142 expands this, requiring that breaks be provided \u201ceach time\u201d a lactating employee \u201chas need to express milk.\u201d<\/li>\n<\/ul>\n<p>Fear not, the new law has several exceptions. Companies with fewer than 50 employees are exempt from lactation room requirements if they can show that complying with the law would cause an undue hardship. Employers in a multitenant building or multiemployer worksite that cannot provide a lactation location within their own workspace may utilize a shared space within the building. Employers that share a multiemployer worksite also have a two-day grace period to provide lactation accommodations for subcontractor employers so that they may provide lactation accommodations at the worksite. Likewise, employers experiencing operational, financial, or space limitations may comply with the new requirements by designating a temporary lactation location.<\/p>\n<p>SB 142 takes effect on January 1, 2020. Denial of a lactation break or room will constitute a violation of California Labor Code Section 226.7 (rest breaks) and will carry a civil penalty of $100 per violation, making lactation accommodations a likely target for the plaintiffs\u2019 bar, including in Private Attorney General Act actions. With only two months left become the law takes effect, employers should update their policies and new hire packets and assess what other steps they may need to take to ensure compliance.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>California Governor Gavin Newsom recently signed into law SB 142, significantly expanding employers\u2019 obligations to provide break time and lactation room accommodations for working mothers. Following in the footsteps of San Francisco\u2019s Lactation in the Workplace Ordinance, SB 142 imposes a host of new requirements regarding lactation accommodation spaces, policies, and break time:<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":93,"featured_media":2774,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[628,11,24],"tags":[],"coauthors":[171,1898,1102],"class_list":["post-2773","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-california-developments","category-employment-law","category-wage-and-hour"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2773","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/93"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2773"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2773\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/2774"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2773"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2773"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2773"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2773"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2781,"date":"2019-11-08T17:02:17","date_gmt":"2019-11-08T22:02:17","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2781"},"modified":"2019-11-08T17:02:17","modified_gmt":"2019-11-08T22:02:17","slug":"the-saga-continues-eeo-1-pay-data-collection-extended-again","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2019\/11\/08\/the-saga-continues-eeo-1-pay-data-collection-extended-again\/","title":{"rendered":"The Saga Continues: EEO-1 Pay Data Collection Extended Again"},"content":{"rendered":"<p>Last week, U.S. District Court Judge Tanya S. Chutkan <a href=\"http:\/\/s3.amazonaws.com\/cdn.orrick.com\/files\/EEO-1Order4158-8945-30881.pdf\">ruled<\/a> that the EEOC may not discontinue its pay data collection efforts on November 11, 2019, but rather, must continue its collection efforts until it has collected from at least 98.3% of eligible reporters and must make all efforts to do so by January 31, 2020.\u00a0 The ruling is the latest in a lengthy saga regarding whether EEO-1 Component 2 pay data (data on employees\u2019 W-2 earnings and hours worked across broad job categories, and broken down by ethnicity, race, and sex) would be collected\u2014a saga that began with the Office of Management and Budget staying collection efforts, and culminated last Spring when Judge Chutkan ruled the decision to stay the collection lacked the reasoned explanation required by the Administrative Procedure Act (see overview <a href=\"https:\/\/blogs.orrick.com\/equalpaypulse\/2019\/09\/13\/eeoc-yanks-its-pay-data-collection-efforts-for-future-years\/\">here<\/a>).\u00a0 After vacating the stay, Judge Chutkan initially set the deadline for data collection for May 31, 2019, but later <a href=\"https:\/\/blogs.orrick.com\/equalpaypulse\/2019\/04\/26\/district-court-orders-employers-to-submit-component-2-data-by-september-30-2019\/\">extended<\/a> it to September 30, 2019.<!--more--><\/p>\n<p>Following the September 30, 2019 deadline, the EEOC <a href=\"https:\/\/eeoccomp2.norc.org\/\">announced<\/a> that its data collection efforts would remain open for six weeks through November 11, 2019, and, in the filing that instigated this ruling, moved the court for an order determining that data collection was complete.\u00a0 The court denied the motion on the basis that the EEOC had not met the requirement of collecting from a sufficient number of employers\u2014that is, from a number of reporters that \u201cequals or exceeds the mean percentage of EEO-1 reporters that actually submitted EEO-1 reports in each of the past four reporting years.\u201d\u00a0 When the EEOC filed its motion, it had obtained results from only 81.1% of eligible filers for 2017 and 81.5% of eligible filers for 2018, which exceeded the mean percentage of reports submitted <em>on time<\/em> in previous years, but not the mean percentage of reports <em>actually submitted<\/em> overall\u2014including those submitted past the deadline.<\/p>\n<p>As a result, although the EEOC does not guarantee how long it will keep its pay data collection portal open, it appears that the portal will stay open at least through January 31, 2020.\u00a0 Luckily, it appears employers will not have to repeat this process next year given the fact that (as reported <a href=\"https:\/\/blogs.orrick.com\/equalpaypulse\/2019\/09\/13\/eeoc-yanks-its-pay-data-collection-efforts-for-future-years\/\">here<\/a>) the EEOC has decided not to request renewed authorization for collection of pay data in future years.\u00a0 Meanwhile, the EEOC has <a href=\"https:\/\/www.federalregister.gov\/documents\/2019\/11\/05\/2019-24118\/public-hearing\">scheduled<\/a> a hearing on November 20, 2019 to discuss the future of the revised EEO-1 form.\u00a0 Stay tuned for further updates.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>Last week, U.S. District Court Judge Tanya S. Chutkan ruled that the EEOC may not discontinue its pay data collection efforts on November 11, 2019, but rather, must continue its collection efforts until it has collected from at least 98.3% of eligible reporters and must make all efforts to do so by January 31, 2020.\u00a0 [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":70,"featured_media":2782,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[39,11],"tags":[3199,2083,1565,1095,2084,1783,3200,3201],"coauthors":[144,756,2850],"class_list":["post-2781","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-eeoc","category-employment-law","tag-component-2-data","tag-eeo-1","tag-eeoc","tag-equal-employment-opportunity-commission","tag-office-of-management-and-budget","tag-omb","tag-pay-data-collection","tag-revised-eeo-1"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2781","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/70"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2781"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2781\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/2782"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2781"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2781"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2781"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2781"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2770,"date":"2019-11-08T13:02:40","date_gmt":"2019-11-08T18:02:40","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2770"},"modified":"2019-11-08T13:02:40","modified_gmt":"2019-11-08T18:02:40","slug":"can-you-hear-the-whistle-blowing-cftc-releases-2019-annual-report","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2019\/11\/08\/can-you-hear-the-whistle-blowing-cftc-releases-2019-annual-report\/","title":{"rendered":"Can You Hear The Whistle Blowing?: CFTC Releases 2019 Annual Report"},"content":{"rendered":"<p>The U.S. Securities Exchange Commission (\u201cSEC\u201d) and Commodity Futures Trading Commission (\u201cCFTC\u201d) administer whistleblower claims under the <a href=\"https:\/\/uslaw.link\/citation\/us-law\/public\/107\/204\">Sarbanes-Oxley Act of 2002<\/a>. While the SEC has jurisdiction to regulate U.S. securities markets, the CFTC regulates the U.S. derivatives markets, which includes futures, swaps, and certain types of option contracts. In October, the CFTC\u2019s Whistleblower Office (\u201cWBO\u201d) released its <a href=\"https:\/\/whistleblower.gov\/sites\/whistleblower\/files\/2019-10\/FY19%20Annual%20Whistleblower%20Report%20to%20Congress%20Final.pdf?utm_medium=email&amp;utm_source=govdelivery\">2019 Annual Report<\/a> (the \u201cReport\u201d) to two congressional subcommittees to provide insights into its whistleblower program and customer education initiatives. The Report provides an overview of the tips received by the WBO from October 1, 2018-September 30, 2019 (the \u201creporting period\u201d), highlights several of the whistleblower awards from the past year, and discusses the WBO\u2019s efforts to educate stakeholders about its whistleblower program.<!--more--><\/p>\n<p><strong>Breakdown of Tips Received during the Reporting Period<\/strong><\/p>\n<p>The WBO reported a decrease in the number of whistleblower tips and complaints that it received in 2018\u2013455 tips in 2019 compared to 760 tips in 2019\u2014but noted that the number was almost the same as the number of tips it received in 2017 (465). Interestingly, the WBO attributed the 2018 spike in tips to \u201cincreased popular interest in virtual currencies and certain WBO publicity around them, which encouraged members of the public to report virtual currency fraud through the Whistleblower Program.\u201d<\/p>\n<p>The WBO also reported that it received 117 whistleblower award applications in 2019, just below its program record of 120 in 2018.\u00a0 Overall, the 2019 whistleblower tips regarded activities such as: Bank Secrecy Act violations; failures to register; false reporting; foreign bribery; fraud involving virtual currencies, precious metals, foreign currency exchange, or binary options; inadequate risk controls; insider trading; money laundering; retaliation against employees; and spoofing and other forms of disruptive trading or market manipulation.<\/p>\n<p><strong>Profiles of Bounty Recipients<\/strong><\/p>\n<p>During the reporting period, the CFTC announced five whistleblower awards totaling more than $15 million\u00a0(including two awards based in part on related actions), bringing the total payout under the program to approximately $100 million between 14 awards since its inception.\u00a0 Notably, the report specifically highlighted several 2019 awards, some of which we previously covered <a href=\"https:\/\/blogs.orrick.com\/employment\/2019\/05\/23\/inside-out-cftc-enhances-whistleblower-award-for-internal-reporting\/\">here<\/a>.\u00a0 Ultimately, the CFTC enforcement actions associated with those awards resulted in a total amount of sanctions exceeding $800 million.<\/p>\n<p><strong>Additional CFTC Priorities<\/strong><\/p>\n<p>The Report reaffirmed the CFTC\u2019s continued focus on educating stakeholders about the agency\u2019s whistleblower program. The Report mentioned speeches, web postings, panel, and seminar appearances as the main sources of educating the public.\u00a0The Report also reiterated the role its <a href=\"https:\/\/www.whistleblower.gov\">website<\/a> plays as a source for providing information about its programs, learning about whistleblower rights, and for submitting whistleblower tips. It noted that the CFTC is also using its website to publish alerts on trending topics, such as virtual currencies.<\/p>\n<p>The Report also discussed the WBO\u2019s important role in protecting whistleblower confidentiality during judicial and administrative actions by the CFTC and other government agencies.\u00a0 Furthermore, the Report highlighted the Office of Customer Education and Outreach\u2019s (\u201cOCEO\u201d) efforts to create and distribute financial education messages designed to help consumers identify, avoid, and report fraud.\u00a0 Specifically, the OCEO focused much of its attention on virtual currency education in 2019, because it \u201cremain[ed] an area where greater customer education and information [wa]s needed.\u201d Finally, the Report noted that the OCEO has conducted outreach to educators, communications professionals, military personal financial management counselors, and other key professional stakeholders to help amplify its message to reach more members of the public.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>The U.S. Securities Exchange Commission (\u201cSEC\u201d) and Commodity Futures Trading Commission (\u201cCFTC\u201d) administer whistleblower claims under the Sarbanes-Oxley Act of 2002. While the SEC has jurisdiction to regulate U.S. securities markets, the CFTC regulates the U.S. derivatives markets, which includes futures, swaps, and certain types of option contracts. In October, the CFTC\u2019s Whistleblower Office (\u201cWBO\u201d) [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":71,"featured_media":2771,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2710,11,2711,25],"tags":[3193,1550,1565,239,3102,3194],"coauthors":[88,236,1102],"class_list":["post-2770","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-dodd-frank-act","category-employment-law","category-sarbanes-oxley-act","category-whistleblower","tag-california-equal-pay-developments","tag-discrimination","tag-eeoc","tag-equal-pay-2","tag-international-equal-pay-developments","tag-state-equal-pay-protections"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2770","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/71"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2770"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2770\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/2771"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2770"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2770"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2770"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2770"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}},{"id":2767,"date":"2019-11-01T10:33:05","date_gmt":"2019-11-01T14:33:05","guid":{"rendered":"https:\/\/blogs.orrick.com\/employment\/?p=2767"},"modified":"2020-12-07T17:47:16","modified_gmt":"2020-12-07T22:47:16","slug":"its-about-time-dols-overtime-regulations-become-final","status":"publish","type":"post","link":"https:\/\/blogs.orrick.com\/employment\/2019\/11\/01\/its-about-time-dols-overtime-regulations-become-final\/","title":{"rendered":"It\u2019s About Time!: DOL\u2019s Overtime Regulations Become Final"},"content":{"rendered":"<p>On September 24, 2019, the U.S. Department of Labor (DOL) announced its <a href=\"https:\/\/www.federalregister.gov\/documents\/2019\/09\/27\/2019-20353\/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and\">final rule<\/a> updating the earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act\u2019s (FLSA) minimum wage and overtime pay requirements.\u00a0 According to the DOL\u2019s <a href=\"https:\/\/www.dol.gov\/newsroom\/releases\/whd\/whd20190924\">press release<\/a>, \u201c[t]he increases to the salary thresholds are long overdue in light of wage and salary growth since 2004,\u201d and the DOL estimates that 1.3 million additional workers will be entitled to minimum wage and overtime pay as a result of the new regulations.<!--more--><\/p>\n<p>The DOL\u2019s final rule creates four key changes:<\/p>\n<ol>\n<li>It raises the \u201cstandard salary level\u201d from the current level of $455 per week ($23,660 per year for a full-year worker) to $684 per week ($35,568 per year for a full-year worker);<\/li>\n<li>It raises the total annual compensation requirement for \u201chighly compensated employees\u201d from the current level of $100,000 per year to $107,432 per year;<\/li>\n<li>It allows employers to use nondiscretionary bonuses and incentive payments, including commissions, paid at least annually to satisfy up to 10% of the standard salary level; and<\/li>\n<li>It revises the special salary levels for workers in U.S. territories and the movie industry.<\/li>\n<\/ol>\n<p>The final rule becomes effective on January 1, 2020.\u00a0 As we <a href=\"https:\/\/blogs.orrick.com\/employment\/2017\/09\/08\/texas-two-step-overtime-ruling-does-not-completely-end-the-obama-rule-dance\/\">previously reported<\/a>, the U.S. District Court for the Eastern District of Texas had issued a nationwide injunction on a 2016 version of the rule and subsequently invalidated that proposed version.\u00a0 Although the new rule may be challenged, employers should prepare to be in compliance at the beginning of next year.\u00a0 To this end, employers may wish to consult the <a href=\"https:\/\/www.dol.gov\/whd\/overtime2019\/overtime_FS.htm\">Fact Sheet<\/a> and <a href=\"https:\/\/www.dol.gov\/whd\/overtime2019\/overtime_FAQ.htm\">FAQs<\/a> the DOL has promulgated.\u00a0 Likewise, employers should be mindful of <a href=\"https:\/\/blogs.orrick.com\/employment\/2017\/11\/07\/the-federal-overtime-rule-stalls-and-state-minimum-wage-and-overtime-rules-rev-up\/\">state overtime rules<\/a> that may still remain above the new salary thresholds.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>On September 24, 2019, the U.S. Department of Labor (DOL) announced its final rule updating the earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act\u2019s (FLSA) minimum wage and overtime pay requirements.\u00a0 According to the DOL\u2019s press release, \u201c[t]he increases to the salary thresholds are long overdue in [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":99,"featured_media":2769,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2601,11,24],"tags":[160,104,765,146,147,1326,3198],"coauthors":[60,1102],"class_list":["post-2767","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-dol","category-employment-law","category-wage-and-hour","tag-department-of-labor","tag-dol","tag-exempt-employees","tag-minimum-wage","tag-overtime","tag-regulations","tag-salary-level"],"_links":{"self":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2767","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/users\/99"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/comments?post=2767"}],"version-history":[{"count":0,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/posts\/2767\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media\/2769"}],"wp:attachment":[{"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/media?parent=2767"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/categories?post=2767"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/tags?post=2767"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.orrick.com\/employment\/wp-json\/wp\/v2\/coauthors?post=2767"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}]