Strategies for Responding to Whistleblower / Retaliation Complaints [Webinar Recording]

On Tuesday, March 21, 2023, Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight presented a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar learned: Continue reading

[Webinar] Strategies for Responding to Whistleblower / Retaliation Complaints

On Tuesday, March 21, 2023 at 1 p.m. EST, join Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight for a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn: Continue reading

Navigating the New Normal: Remote Work Challenges [Webinar Recording]

On Wednesday, February 22, 2023, Jordan B. Schwartz and Darius Rohani-Shukla presented a webinar regarding Navigating the New Normal: Remote Work Challenges.

There is no doubt that the COVID-19 pandemic triggered a significant surge in remote work nationwide, allowing more and more employees to work from their homes or some other location locally or in a completely different state from the employer’s brick and mortar location. This has created significant employment hurdles for employers because remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered “based” within a state. But certainly for those who intend to continue to work from a different state on a more long-term basis, its likely that a particular state’s laws could apply.

And the challenges created by remote work are ones that are unlikely to disappear any time soon. Statistical projections show that by the end of 2022 remote work will make up about 25% of all jobs in North America. Notably, in 2021, about 67% of white-collar workers worked either partially or exclusively from home and almost 98% of remote workers surveyed said they would like to work remotely at least some of the time for the rest of their careers.

This desire to work remotely combined with the challenges in hiring and retaining workers that many employers are experiencing, makes it likely that employers will have to continue to grapple with if and how to incorporate remote work into their current structure, including how to effectively monitor employee performance and the employment laws that may be triggered related to this unique work environment.

Participants in this webinar learned: Continue reading

Emerging Trend in Compensation Equity: Pay Transparency Laws

The federal government and individual states have prohibited inequity in compensation based on protected categories such as sex, race, ethnicity, and many others for decades under general anti-discrimination laws. For instance, at the federal level, it is impermissible to pay someone less because of their sex under the Equal Pay Act, which requires that men and women in the same workplace be paid equally for equal work. More broadly, Title VII of the Civil Rights Act prohibits discriminating against someone in the terms and conditions of employment, including pay, based on sex, race, color, national origin, and religion. And many states have similar laws with more extensive applicability and additional protected categories. However, it is only more recently that the discussion regarding pay inequity has moved to the foreground propelled by national social movements such as the MeToo and BlackLivesMatter movements, among others. With this more recent discourse around pay equity, there have also been some accompanying changes in the law, including a number of cities and states adopting pay transparency laws that give broader, more public access to pay information.

What are Pay Transparency Laws

Pay transparency laws generally require that employers disclose specific pay information to applicants, such as the wage, salary range, or pay scale for the position. The timing of such disclosures, the context in which such disclosures are required to be made, and the content of such disclosures varies depending on the state or local law. The goal of these laws is to more effectively address existing wage gaps and prevent against future wage gaps by providing greater openness and standardization of the salary range for a specific position no matter the applicant. Indeed, per recent earnings data at the end of 2022, White women earned about 83% percent as much as their White male counterparts while Black men earned about 79.6% of the median income of White men, among several other gaps identified based on sex, race, ethnicity, and age, per data collected by the United States Bureau of Labor Statistics.

Traditionally, specific employee salaries have been a subject treated as private information, not broadly shared or discussed. However, pay transparency laws require that this information be proactively provided, often through the actual job posting or at least some time during the application process upon an offer being made or by request of the applicant. Pay transparency laws also frequently go hand in hand with limitations on the information an employer can obtain about an applicant’s own pay history to avoid the potential of perpetuating a pay gap by using that information to determine current compensation.

Most Recent States that Have Adopted Pay Transparency Laws

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[Webinar] Navigating the New Normal: Remote Work Challenges

On Wednesday, February 22, 2023 at 1 p.m. EST, join Dan Deacon and Darius Rohani-Shukla for a webinar regarding Navigating the New Normal: Remote Work Challenges.

There is no doubt that the COVID-19 pandemic triggered a significant surge in remote work nationwide, allowing more and more employees to work from their homes or some other location locally or in a completely different state from the employer’s brick and mortar location. This has created significant employment hurdles for employers because remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered “based” within a state. But certainly for those who intend to continue to work from a different state on a more long-term basis, its likely that a particular state’s laws could apply.

And the challenges created by remote work are ones that are unlikely to disappear any time soon. Statistical projections show that by the end of 2022 remote work will make up about 25% of all jobs in North America. Notably, in 2021, about 67% of white-collar workers worked either partially or exclusively from home and almost 98% of remote workers surveyed said they would like to work remotely at least some of the time for the rest of their careers.

This desire to work remotely combined with the challenges in hiring and retaining workers that many employers are experiencing, makes it likely that employers will have to continue to grapple with if and how to incorporate remote work into their current structure, including how to effectively monitor employee performance and the employment laws that may be triggered related to this unique work environment.

Participants in this webinar will learn: Continue reading

FTC Moves to Ban the Use of Noncompete Agreements by All Employers

By Kara M. Maciel and Samuel S. Rose

The Federal Trade Commission (FTC) has issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, independent contractors, interns, volunteers, and other types of workers. The FTC’s self-described mission is “protecting the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education.” This proposed rule is the latest example of the FTC, under the direction of Chair Lina Khan, attempting to control corporate power and influence. Since Khan took over control of the agency in June 2021, the FTC has challenged the Microsoft-Activision merger, worked with the Justice Department to force Epic Games Inc., developer of the popular video game Fortnite, to agree to massive privacy law violation penalties, and filed a lawsuit to block Meta from buying a virtual reality start-up.

Generally, noncompete agreements prevent an employee from joining a competitor or starting a competitive business for a specified period of time. Often, noncompete agreements are limited to a geographic area.  Many states regulate noncompete agreements in a variety of ways, including through income levels and notice requirements, but this new federal rule would supersede any state or local law that expressly allows for such restrictions.

The FTC estimates that approximately 30 million people are bound by noncompete agreements. Continue reading

[Webinar] Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation

On Wednesday, November 16, 2022 at 1 p.m. EST, join Lindsay A. DiSalvo and Megan S. Shaked for a webinar regarding Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation.

When an administrative agency, like the federal Equal Employment Opportunity Commission (“EEOC”), receives a complaint of discrimination or retaliation, the employer is given an opportunity to respond and provide information/evidence pursuant to the agency’s investigation of the complaint. In its response, the employer can explain why the action taken against the employee was legitimate or did not occur as alleged. These responses are an opportunity for the employer to provide sufficient information to avoid further action by the administrative agency or potentially litigation of the claim(s). A strong response could demonstrate there is no support for the complaint and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which the agency can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to establish liability. Thus, employers must be thoughtful in sharing information at this early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn about: Continue reading

NLRB Memo Addresses Electronic Monitoring and Algorithmic Tools’ Effects on Employee Section 7 Rights

By: Kara Maciel and Darius Rohani-Shukla

On October 31, 2022, the National Labor Relations Board (the “Board”) General Counsel Jennifer Abruzzo sent a memo to all regional directors, officers-in-charge, and resident officers communicating her concerns over electronic monitoring and algorithmic management. The memo highlighted concerns that employers might be able to use those tools to impair or negate employees’ ability to exercise their rights under Section 7 of the National Labor Relations Act (the “Act”).

Technological advancements have enabled employers to surveil and analyze employees in increasingly intrusive ways. For example, employers can record workers’ conversations, track their movements with wearable devices, and monitor employees’ computers with keyloggers and software. Employers can also use algorithms to: identify disengaged employees at risk of leaving their employment; suggest career paths for current employees; assist employers through the performance management process; assess personality, aptitude, skills, and perceived “cultural fit;” and even monitor employee efficiency.

The Board has previously recognized that some employer surveilling practices are unlawful. In instances where employees are engaging in protected concerted activity and public union activity – the Board has acknowledged that photographing employees engaging in protected concerted activities is intimidating. An employer’s capacity to surveil its employees is analyzed by balancing its justification for the surveillance versus the apparent risk of interfering with or deterring employee activity.

Surveillance Technologies and Algorithmic Tools impact employees’ rights under Section 7 and Section 8(a)(1) of the Act:

  • Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
  • Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.

Employer can violate Section 8(a)(1) through the following activities:

  • Instituting new monitoring technologies in response to activity protected by Section 7;
  • Utilizing technologies already in place to discover that activity, including by reviewing security-camera footage or employees’ social-media accounts;
  • Creating the impression that it is doing such things; or
  • Disciplining employees who concertedly protest workplace surveillance or the pace of work set by algorithmic management.

Electronic Surveillance in the Workplace

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California Confirms Meal and Rest Period Claims are a Hook for Attorney’s Fees Awards

By Samuel Rose and Megan Shaked

A few months ago, we wrote a blog article on the California Supreme Court’s decision in Naranjo v. Spectrum Security Services, Inc., which held that premium pay for meal and rest break violations is considered “wages,” paving the way to award waiting time and wage statement penalties based on meal/rest period violations alone. We noted that the practical impact of the Naranjo decision could be to encourage class action and PAGA (Labor Code Private Attorneys General Act) litigation within California by providing further remedies in meal and rest period litigation and inflating the settlement value of these cases.

Now, we are starting to see the real impacts of the Naranjo decision. The California Court of Appeal has issued its decision in Betancourt v. OS Restaurant Services, LLC after remand from the Supreme Court with instructions to reconsider its initial opinion in light of Naranjo. Originally, the Court of Appeal decided in Betancourt that, based on Kirby v. Inmoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, an action brought for failure to provide meal and rest breaks is not based on nonpayment of wages. That meant that the Plaintiff could not recover for waiting time penalties and wage statement violations, and that the Plaintiff could not recover attorney fees under Labor Code section 218.5(a).

In applying Naranjo, the Court of Appeal in Betancourt had to reverse course, confirming that Continue reading

[Webinar] Wage and Hour Best Practices

On Thursday, August 11, 2022 at 1 p.m. EST, join Andrew J. Sommer and Ashley D. Mitchell for a webinar regarding Wage and Hour Best Practices.

Employers are subject to numerous federal and state laws governing employee wages, the hours of work for which an employee must be paid, and the frequency and duration of breaks an employee is entitled to during the workday. Wage and hour issues are further complicated by a shift to remote work during the pandemic. Even the best-intentioned employers could face a multimillion-dollar wage and hour class action. This webinar will give you a blueprint for best practices and common pitfalls to avoid and mitigate the risk of future wage and hour litigation.

Participants in this webinar will learn about: Continue reading