[Webinar] Best Practices for Protecting your Company’s Primary Assets: Its Workforce, Trade Secrets and Customer Relationships

On Wednesday, July 17, 2019, at 1 pm EST, join Jordan B. Schwartz and Daniel C. Deacon of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: Best Practices for Protecting your Company’s Primary Assets: Its Workforce, Trade Secrets and Customer Relationships.

The protection of trade secrets and confidential and proprietary information are essential for companies.  As a result, employers must be vigilant against the continued threat of such information being compromised.  Proprietary and confidential shutterstock_confidential.jpginformation is at particular risk during times of significant employee movement.  Proactive companies should address this risk and appropriately protect and preserve data, as well as develop proactive policies for employee separations, such as requiring confidentiality agreements and non-compete and/or non-solicitation agreements. Continue reading

Guide to Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards/Employee Safety Complaints

By Lindsay A. DiSalvo and Beeta B. Lashkari

When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim.  A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer.  However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.

Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response.  We are pleased to share the following tips and strategies for how to effectively address such complaints.

Whistleblower Complaints

To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.

While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them.  This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading

California Legislature Embraces the Dynamex Standard for Evaluating Independent Contractor Arrangements

The California legislature is considering a bill that would codify in the Labor Code and Unemployment Insurance Code the California Supreme Court’s decision in Dynamexshutterstock_litigationwhich adopted a standard that made it significantly more difficult for employers to classify workers as independent contractors, ignoring the realities of the modern workplace and gig economy.  Assembly Bill 5 was introduced back in December 2018, and has passed the Assembly and is making its way through the Senate. 

As this blog previously noted, last year the Supreme Court in Dynamex interpreted the definition of “employee” under the California Wage Orders as placing the burden on the hiring entity seeking to characterize a worker as an independent contractor to establish each of these three factors: (A) that the worker is free from the control and direction of the hiring entity in performing the work; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.  This is known as the “ABC test.”

For years prior to the Dynamex decision, the California courts Continue reading

SSA No-Match Letters Are Back: How Should Employers Respond?

Capitol BuildingRecently, the Social Security Administration (SSA) resumed their practice of sending Employer Correction Requests (informally “no-match letters”) to employers advising them that information submitted on an employee’s Form W-2 does not match SSA records.  The SSA stopped sending no-match letters in 2012, but in recent months, employers across many industries have received letters.

The no-match letter states that there is an error with at least one name and the Social Security Number (SSN) on a W-2 that is submitted by the employer.  Importantly, the no-match letter does not imply that the employer or the employee intentionally reported incorrect information.  They are educational in nature to advise employers that a correction may be needed for the SSA to post the correct wages to the right record because discrepancies could occur due to typographical errors, unreported name changes (such as changes due to marriage or divorce) and inaccurate employer records.

If your company has received a no-match letter, consider taking the following action: Continue reading

NLRB General Counsel’s Comment Indicates Expected Restoration of Pro-Employer Precedent

During a recent conference at New York University, NLRB General Counsel, Peter Robb, hinted at the forthcoming restoration of more than fifty years of precedent allowing employers to cease withholding union dues after the expiration of the collective bargaining agreement containing the so-called “dues check-off” provision.

shutterstock_gavel.jpgAs reported by Law360, Robb referred to the 2015 Obama-era decision overturning that precedent as “misguided,” and stated further: “I think unless there’s clear language that the dues check-off should continue, it shouldn’t.” Prior to that 2015 decision, the Board had, since 1962, consistently held that dues check-off provisions, which implement union security provisions by providing for the automatic deduction of union dues, could be cancelled by employers upon contract expiration. See Bethlehem Steel Co., 136 NLRB 1500 (1962).

Continue reading

On the Basis of Personal Appearance

As you know, Title VII of the Civil Rights Act of 1964 (Title VII) is one of the principal federal statutes prohibiting employment discrimination.  It prohibits discrimination on the basis of race, color, national origin, religion, and sex (including gender and pregnancy).  shutterstock_Washington DCOther federal statutes that prohibit employment discrimination include Title I and Title V of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA).  But, employers must also be aware of state and local laws that extend protection beyond these federally protected classes.  In the District of Columbia, for example, it is a violation of the law to discriminate on the basis of personal appearance, a category of protected class that has caused employers significant confusion with respect to what kinds of dress and grooming policies they may lawfully enforce.  So what does personal appearance discrimination mean?  And what should employers do to minimize their legal risk and ensure they do not run afoul of such laws?

Under the D.C. Human Rights Act (DCHRA), personal appearance is one of 20 protected traits for people that live, visit or work in D.C.  Personal appearance is defined as the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards.  To flesh this out, the D.C. Office of Human Rights, which administers Continue reading

[Webinar] Summer Loving – Managing Relationships in the Workplace, Nepotism and Other Interpersonal Issues

On Wednesday, June 12, 2019, at 1 pm EST, join Andrew J. Sommer and Megan S. Shaked of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: Summer Loving – Managing Relationships in the Workplace, Nepotism and Other Interpersonal Issues.

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Is love in the air?  Even in the age of dating apps, romantic relationships still often blossom at work.  How does an employer navigate these waters while protecting company productivity and morale and managing potential risk associated with such relationships?

Participants will learn about the following:​ Continue reading