Laws protecting whistleblowers generally afford anti-retaliation protections when employees “step out of their role” to report discrimination and dangerous or illegal activity, but not to employees when they are performing their issue spotting job duties.  Employers who understand this distinction are well positioned to manage underperforming employees in sensitive issue-spotting roles such as information technology, compliance, internal audit and even in-house counsel without running afoul of anti-retaliation laws.  The Second Circuit Court of Appeal’s recent decision affirming the Southern District of New York’s dismissal of whistleblower retaliation claims in Johnson v. Board of Education Retirement System of City of New York illustrates this distinction.

Continue Reading Issue Spotting Is Not Whistleblowing

On November 16, 2022, the U.S. House of Representatives passed the Speak Out Act (the “Act”), which President Biden is expected to sign into law. The bipartisan legislation, passed by the Senate on September 29, 2022, limits the enforceability of predispute nondisclosure and nondisparagement clauses relating to sexual assault and sexual harassment claims.

Continue Reading Congress Passes the Speak Out Act

As featured in #WorkforceWednesday:  This week, we break down the Equal Employment Opportunity Commission’s (EEOC’s) recent commissioner charges surrounding abortion travel benefits, potential changes to employer policies due to midterm election results, and the U.S. Supreme Court’s (SCOTUS’s) decision not to review whether COVID-19 justifies a violation of the Worker Adjustment and Retraining Notification (WARN) Act.

Continue Reading Video: EEOC Targets Abortion Travel, Midterm Results, and SCOTUS Declines COVID-19 WARN Act Case – Employment Law This Week

Effective November 16, 2022,  non-governmental health care entities must offer eligible employees continued employment for at least four months following a change in control without any reduction in their wages and benefits – including paid time off, health care, retirement, and education benefits in accordance with Senate Bill No. 315 (the Law).  Change in control includes sales, transfers, assignments, mergers, and reorganizations and is deemed to “occur on the date of execution of the document effectuating the change.”

Continue Reading New Jersey Health Care Workers: New Job Protections Following Changes in Control of Their Health Care Entity Employer

On November 1, 2022, in Dusel v. Factory Mutual Ins. Co., the First Circuit Court of Appeals held that “close temporal proximity” alone does not establish pretext as this evidence “must be considered alongside the . . . record.” Nor does mere close temporal proximity establish pretext where the employer has a legitimate business reason for taking adverse action against the employee, and more particularly, where the employer subsequently discovers the employee’s misconduct in a separate, unrelated matter. Dusel is a win for employers because it signals that engaging in protected activity will not immunize an employee from the consequences of misconduct that violates company policy if the employer enforces its policy consistently and documents the reasons underlying the employee’s discipline.

Continue Reading First Circuit Upholds Employer’s Win in Retaliation Suit

As featured in #WorkforceWednesday:  This week, we shed light on the growing issues surrounding electronic employee monitoring, the Equal Employment Opportunity Commission’s (EEOC’s) disavowal of comments by a former General Counsel (GC) regarding abortion travel benefits, and California’s latest marijuana employment protection law.

Continue Reading Video: Potential for NLRA Expansion, EEOC Disavows Former GC’s Comments, California Adds Marijuana Employment Protections – Employment Law This Week

In the wake of the landmark decision in Dobbs v. Jackson Women’s Health Organization, we have been closely monitoring legal developments across the country. In addition to well publicized “trigger laws” that were effectuated as a result of the U.S. Supreme Court’s order, states have taken up a variety of legislative actions in response to the ruling, which placed authority for the regulation of abortion with the states.

Continue Reading Five States Put Abortion Questions on the Ballot; Health Care and Other Employers Should Stay Tuned

On November 6, 2022, clocks will fall back an hour and in Westchester County, New York a new law requiring disclosure of salary ranges in job advertisements will take effect.

As we previously reported, Westchester, located just north of New York City and home to numerous corporate campuses, recently enacted an amendment to its local human rights law to require employers to state a minimum and maximum salary in any “posting” for jobs, promotions, and transfer opportunities. This comes on the heels of a similar law in New York City that took effect on November 1, 2022.

Continue Reading Fall Back: Westchester’s Pay Transparency Law Takes Effect on November 6, 2022