Workforce Bulletin

OSHA enforces the whistleblower provisions of 22 separate statutes.  The number of retaliation claims filed under the various statutes has risen steadily each year and the cost of investigating them has placed a tremendous strain on OSHA’s fiscal and physical resources.  Searching for a way to reduce the costly and time consuming process of an investigation and litigation, OSHA conducted pilot Alternative Dispute Resolution (ADR) programs in two of its regions from October 2012 to September 2013.  The pilot programs were well received by employers and whistleblowers alike ...

Under the Federal Fair Labor Standards Act (and state wage hour laws) certain hourly paid employees must be paid time and one-half their regular rate of pay for all hours worked over 40 in a regular work week.

But certain employees (for example many general managers and lead managers) are exempt from this requirement if they satisfy three qualifications imposed by federal regulations:

1. The employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed;
2. the amount of salary paid must be at least $455 ...

On August 4, 2015, the SEC issued an "Interpretation of the SEC's Whistleblower Rules Under Section 21F of the Securities Exchange Act of 1934." (pdf).  Unsurprisingly, and consistent with the position that it has been taking in amicus briefs on the issue, the SEC states that a whistleblower need not report suspected wrongdoing to the Commission in order to be protected by the anti-retaliation provisions of Dodd-Frank.  Rather, internal whistleblowing that is protected under the Sarbanes-Oxley Act is protected activity sufficient to state a claim under Dodd-Frank, according to ...

My colleague Steven M. Swirsky at Epstein Becker Green published a Management Memo blog post concerning U.S. District Judge Amy Berman Jackson granting summary judgment in favor of the NLRB - “Washington Court Dismisses Challenge to NLRB’s Ambush Election Rules.”

Following is an excerpt:

U.S. District Court Judge Amy Berman Jackson on Wednesday issued a 72 page opinion (PDF) rejecting each of the arguments raised by the U.S. Chamber of Commerce, the National Retail Federation and other business groups and found that the Amended Election Rules adopted by the National Labor ...

My colleague Steven M. Swirsky at Epstein Becker Green published a Management Memo blog post concerning U.S. District Judge Amy Berman Jackson granting summary judgment in favor of the NLRB - “Washington Court Dismisses Challenge to NLRB’s Ambush Election Rules.”

Following is an excerpt:

U.S. District Court Judge Amy Berman Jackson on Wednesday issued a 72 page opinion (PDF) rejecting each of the arguments raised by the U.S. Chamber of Commerce, the National Retail Federation and other business groups and found that the Amended Election Rules adopted by the National Labor ...

The U.S. Equal Employment Opportunity Commission (“EEOC”) created the Action Council for Transformation to a Digital Charge System (“ACT Digital”) to enable the electronic submission of documents between the parties to a Charge of Discrimination and the EEOC.  Phase I of the system allows an employer against whom a Charge of employment discrimination has been filed to electronically interact with the EEOC through its online service for respondents, the EEOC Respondent Portal.  The pilot program for Phase I began in May 2015 in the Commission’s Charlotte and San ...

The United States Department of Justice recently released technical guidelines aimed at cur”tail”ing proliferating efforts purporting to expand the meaning of “service animal” under the Americans With Disabilities Act (“ADA”). Under the ADA, public accommodations (e.g. restaurants, hotels, retail establishments, theaters, and concert halls) must permit the use of service animals by disabled individuals. These technical guidelines take aim at increasing claims that a variety of animals (e.g. a pigs) are service animals because they provide emotional ...

On June 10, 2015, the much-anticipated joint final standards (“Final Standards”) issued by six federal agencies (“Agencies”) in accordance with Section 342 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Act") for assessing the diversity policies and practices of the entities that they regulate (“Covered Entities”) were published and became effective.   Covered Entities include financial institutions, investment banking firms, mortgage banking firms, asset management firms, brokers, dealers, financial services entities ...

In the wake of several high-profile wins for the LGBT community, the U.S. Equal Employment Opportunity Commission (“EEOC”) added employment discrimination protection to the list.  On July 16, 2015, the EEOC ruled that discrimination against employees based on sexual orientation is prohibited by Title VII of the 1964 Civil Rights Act of 1964 (“Title VII”) as discrimination based on sex.

The EEOC held that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” ...

My colleagues Nancy L. Gunzenhauser, Kate B. Rhodes, and Judah L. Rosenblatt at Epstein Becker Green have a Retail Labor and Employment Law blog post concerning a recent EEOC modification to employment discrimination protection: “EEOC Rules Discrimination Based On Sexual Orientation Illegal Under Title VII.”

Following is an excerpt:

The EEOC held that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  The EEOC noted that sex-based considerations also ...