Employers concerned about their organizations’ FCPA compliance have a new, free resource available to them. Recently, the DOJ and the SEC published a long-awaited FCPA guidance for employers. The comprehensive guidance consists of cases, hypotheticals, interpretations, and explanations, and is designed to guide employers in designing and testing their FCPA compliance programs. The DOJ and SEC also issued a fact sheet in connection with the guidance, providing a brief overview of the types of resources available to employers in the guidance.Continue reading this entry
Web sites abound advising employees they can make “millions” by blowing the whistle on their employers for alleged violations of laws, rules, or regulations. The federal law known as the False Claims Act (FCA) also contains antiretaliation provisions prohibiting employers from discriminating against employees who make such claims. Continue reading this entry
With the passage of Amendment 64 in Colorado and Initiative 502 in Washington, the issue of dealing with marijuana in the workplace gets hazier for employers in those states. Prior to the votes on November 6, 2012, both Colorado and Washington had laws allowing the use of medical marijuana. Despite those medical marijuana laws, as well as similar laws in other states, courts across the country have repeatedly concluded that employers are not required to accommodate employees being under the influence or using medical marijuana at work and that employers can still take disciplinary action against employees testing positive for marijuana. We have reported on these issues to you previously in our Employment Law Perspectives and Weekly Updates on September 24, 2012 and June 4, 2012. Continue reading this entry
On June 18, 2012, the U.S. Supreme Court issued a landmark decision in Christopher v. SmithKline Beecham, Corp. , finding that the pharmaceutical industry does not have to pay overtime to its sales representatives who visit doctors’ offices to promote their products — a dispute that had threatened the industry with billions of dollars in potential liability. This decision confirmed the industry-wide practice of paying sales representatives a base salary plus commission, and no overtime.Continue reading this entry
On February 21, 2012, the Wisconsin Assembly passed a bill that would eliminate the potential for compensatory and punitive damages for employees who prevail on their discrimination claims in the Wisconsin Department of Workforce Development (DWD). When signed by Governor Scott Walker (which seems certain), 2011 Senate Bill 202 will still entitle employees to reinstatement and the recovery of back pay, costs, and attorneys’ fees, but employees would not be able to use favorable findings in the DWD in a court to obtain additional damages. The Wisconsin Senate already passed the bill in November 2011 (http://www.jsonline.com/news/statepolitics/bill-would-eliminate-punitive-damages-in-discrimination-cases-0l47not-139457683.html), and Governor Walker is likely to sign the legislation into law within the next week or two.
The NLRB has decided to enter the fray in a big way as to the enforceability of arbitration agreements that do not allow for arbitration of class claims. On January 3, 2012, the NLRB ruled in D.R. Horton, Inc. and Michael Cuda, that it constitutes an unfair labor practice for an employer to require, as a condition of employment, that employees arbitrate claims as individuals rather than a class, unless a union has agreed to such arbitration provision. The NLRB found that such an agreement interferes with employees’ right to engage in protected concerted activity. This decision is a rebuke by the NLRB of two recent United States Supreme Court decisions: 14 Penn Plaza LLC v. Pyett and AT&T Mobility v. Concepcion. Continue reading this entry
Happy New Year! Many state laws and local ordinances provided for an increase in minimum wage effective January 1, 2012. Make sure you are complying with these increases for any employees who work for you in the following states or locales:Continue reading this entry
Under the Obama administration, many Department of Labor agencies have stepped up their non-discrimination enforcement activities. The Office of Federal Contract Compliance Programs (OFCCP) has stepped up enforcement even more than most. The latest OFCCP effort is a revision to the regulations on affirmative action for employers as it relates to persons with disabilities. On November 30, 2011, the Office of Management and Budget (OMB) approved a Notice of Proposed Rulemaking (NPRM) that outlined the OFCCP’s revision, which OFCCP Director – Patricia Shiu suggested was going to be a “game changer.” On December 9, 2011, the OFCCP published its proposed revisions in the Federal Register.Continue reading this entry
Since becoming governor of California in January 2011, Jerry Brown has signed a number of significant employee-friendly laws, placing an ever-growing burden on California employers. This article will briefly summarize many of the laws.
Misclassification of Independent Contractors (Effective January 1, 2012)
This law prohibits any employers from willfully misclassifying employees as independent contractors and provides civil penalties of not less than $5,000 and not more than $15,000 for each willful misclassification. The law also provides that the civil penalties can be even greater if the employer has engaged in a pattern or practice of misclassification. The law further authorizes the California Employment Development Department (EDD) to process requests for advice regarding classification of independent contractors, called Advice Memos. Employers must maintain, for at least two years, the
The classification of workers as independent contractors has been a focus of multiple federal and state agencies for at least the past two years. However, the September 19, 2011 announcement by the leaders of the U.S. Department of Labor, the IRS, and 11 state agencies that there will be a coordinated effort to fight misclassification signals a ratcheting up of the intensity. In justifying this program in these troubled economic times, these governmental entities have argued that worker misclassification is a widespread problem that cheats workers out of minimum wages and overtime pay and robs states of tax revenue. It also is expected that they will seek to hold a company liable for the sins of its subcontractors under a “joint employment” theory. The program will involve information-sharing between the agencies as well as coordinated enforcement.
On June 21, 2011, the Wisconsin Legislature passed a bill that would limit a company’s ability to prohibit weapons on its property. The bill, commonly referred to as the “concealed-carry bill,” would amend existing laws to allow licensed individuals to carry concealed weapons anywhere in the state, with few exceptions. Those weapons include handguns, electric weapons, knives (other than a switch blade), and billy clubs. Governor Walker is expected to sign the law.
On June 20, 2011, the United States Supreme Court sided with Wal-Mart in a long-awaited decision regarding standards that apply to class action cases. The new opinion makes it harder for plaintiffs to obtain class certification.
The case was brought by three female Wal-Mart employees (current and former) who claimed that the local supervisors of Wal-Mart stores — on a nationwide basis — exercised discretion over pay and promotion matters in a way that discriminated against women. The underlying question was whether the plaintiffs can represent a class of 1.5 million women around the country, namely, “all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or who may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.”
The decisions from the United States Supreme Court have been less than friendly to employers during the past several years. The expansion of retaliation claims and what may support such claims are a prime example. However, this past week, the Supreme Court issued a decision in Fox v. Vice, U.S. No. 10-114 (June 6, 2011) recognizing a defendant’s right to recover fees and costs for a frivolous claim even where the plaintiff also has asserted a non-frivolous claim.
On May 25, 2011, the SEC issued final rules to clarify certain whistleblower provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act. The key feature of the Act, enacted in July 2010, was to create a bounty or reward program that was designed to dramatically increase the number and quality of tips reported to the SEC about possible securities law violations. The Act also included protections for employees against retaliation for reporting information to the SEC. For example, the Act permits an employee to sue in court, rather than to pursue relief before the Department of Labor, and the suit can be filed up to six or, in some circumstances, 10 years later. Relief also can include double back pay. The SEC also reserved authority to address retaliation claims. Much like the whistleblower protections incorporated into other federal statutes in recent years, Dodd-Frank is expected to lead to a significant increase in
the number and complexity of retaliation claims for employers.
Employers are well advised to maintain some form of drug policy prohibiting employees from reporting to work/working under the influence of controlled substances and alcohol. Conditions on a private employer’s ability to perform drug testing depend on the state law applicable to its employees. Many states allow private employers to conduct random and reasonable suspicion drug testing of employees and most states permit employers to make an offer of employment conditioned on passing a drug test. The Washington Supreme Court recently addressed an employee’s challenge to her employer’s right to terminate her based on her use of medical marijuana, finding that the employee’s use of medical marijuana was not protected by the Washington Medical Use of Marijuana Act.
Healthy Families Act legislation, which would require employers with 15 or more employees to provide workers with up to seven days of paid sick leave, was again introduced in the both the House and Senate on May 12, 2011 (H.R. 1876, S. 984). The House and Senate bills were identical and both were referred for committee review.
Proponents of the bills state that workers without paid sick leave report to work when ill (referred to as "presenteeism"), which generally results in the employees’ symptoms lasting longer and, with contagious illnesses, the infection of co-workers. The proponents assert that presenteeism costs employers $160 billion in lost productivity.
The Supreme Court, led by Chief Justice John Roberts, continues to render decisions favorable to employers and continues to beat back attempts led largely by plaintiffs’ attorneys and consumer activists to limit the use of mandatory arbitration as an alternative to civil litigation in court.
The latest chapter in this ongoing saga was written on April 27, 2011, when the United States Supreme Court announced its 5-4 decision in AT&T Mobility v. Concepcion . What was the case about and what — if anything — does it mean for employers?
It seems likely that the Milwaukee Paid Sick Leave Ordinance will be nullified, and likely very soon. State legislators have been considering legislation that would make family and medical leave uniform throughout Wisconsin, which would essentially preempt Milwaukee’s Sick Leave Ordinance. The Senate has already passed such a bill, and on April 5, 2011, a Wisconsin Assembly committee approved an identical bill (AB-41). AB-41 is scheduled for an Assembly floor vote on April 12, 2011, and expected to pass the Assembly. Governor Scott Walker is expected to sign it.
As reported on Foley’s Labor and Employment Perspectives Blog in November 2010, the EEOC filed nearly 100,000 charges in fiscal year 2010. This number amounted to the most charges ever in the EEOC’s 45-year history and represented a 7.2-percent increase over the number of charges filed in 2009.
On January 28, 2011, the NLRB ruled that it is unlawful to terminate an employee who may, in the future, engage in a protected activity, even if the employee has not yet engaged in the protected activity. The board held that the employer terminated the charging party as a “preemptive strike” to thwart potential concerted activity. This ruling represents a significant departure from the longstanding rule that an employee actually has to engage in protected activity (like discussing wages with other employees) for an employer to be held liable for interfering with that protected “concerted activity.” This decision focuses on the employer’s intent, rather than the employee’s actions.
Please join Foley’s Employee Benefits attorneys for the first broadcast of the 2011 series on Tuesday, February 22, 2011. This session’s featured segments are:
- Headline News: Health Care Reform Legal Challenges and Delayed Effective Date for Insured Plans and Nondiscrimination Rules
- Cram Session: Form 5500 Schedule C Reporting Requirements
- Fiduciary Fundamentals: Proposed New Fiduciary Definition
- In the Spotlight: 401(k) Fee Disclosure Regulations
Join Foley and Lardner on March 24, 2011 at 11:30 CT for our Labor and Employment Inner Workings Web conference series. During this Web conference, we will discuss the renewed and reinvigorated OSHA, its heightened focus on enforcement, and efforts to expand ramifications and penalties in the near future. We also will identify best practices for responding should OSHA come knocking on your door.
Social media and blogging are quickly becoming areas of focus and concern for employers. In the past, we have encouraged employers to create social media and blogging policies and to be watchful of the content employees are submitting through these avenues, given concerns, among others, about protecting the status of confidential and trade secret information. We also have discussed concerns arising from the potential for use of social media as evidence. See Labor and Employment Law Weekly Update. A recent case shows another risk associated with social media and blogging — the potential waiver of the attorney-client privilege.
We’ve all seen claims for wrongful termination, but one recent case takes a different twist: wrongful hiring. An employee who was laid off eight months after moving his family across the country to take a new job was awarded $1.9 million in damages when he convinced a jury that his new employer knowingly induced him to accept a job that did not exist. The employee claimed the company was trying to entice potential buyers by making it seem by his hire that the company was further along in its development of a project than it was. The jury found the employer misrepresented to the employee how far along it was in developing the project for which the employee was hired, and the job he was supposed to do never developed. In the meantime, as technology changed his field, the employee’s skills fell behind, so that when his new employer laid him off, he had trouble finding work in the field.