On February 21, the U.S. Supreme Court issued an opinion in Digital Realty Trust, Inc. v. Somers, S. Ct. No. 16-1276 (Feb. 21, 2018), narrowing the scope of who qualifies for whistleblower protection under the Dodd-Frank Act. Dodd-Frank is a federal law which, in conjunction with the Sarbanes-Oxley Act, provides incentives and protections for whistleblowers who report suspected securities law violations to the Securities and Exchange Commission (SEC). The issue before the Court was whether “the anti-retaliation provision of Dodd-Frank extend[s] to an individual who has not reported a violation of the securities laws to the SEC and therefore falls outside the Act’s definition of ‘whistleblower[.]’” The Court held that the definition of “whistleblower” in Dodd-Frank did not include employees who failed to report suspected securities law violations to the SEC. While the Court’s decision was based on the statutory language of Dodd-Frank, the decision may present an argument for narrower interpretations of the protections afforded to employees under the whistleblower provisions of the anti-retaliation provisions of Title VII and the ADEA, and other laws such as the False Claims Act. Continue Reading High Court Narrows Whistleblower Status Protections Under Dodd-Frank

As we had previously reported, in 2015 the then-Democrat controlled National Labor Relations Board (NLRB) in the Browning-Ferris case ruled that a joint employer relationship could be found if an entity had mere indirect or potential control over individuals employed by another entity. This decision reversed decades of precedent in which the NLRB held that a joint employer relationship would only be found if one entity had “direct and immediate control” over individuals employed by another entity. Continue Reading Ping-Pong Anyone? NLRB Vacates <em>Hy-Brand</em> and Reinstates – For the Moment – <em>Browning-Ferris</em>

Like many holidays, Valentine’s Day is a time when employees celebrate, while HR representatives, in-house counsel, and business owners hold their breath. In the #MeToo era, employers should consider proactively addressing workplace relationships and shoring up internal policies for dealing with complaints. Here are some tools to help employers get in the Valentine’s Day spirit. Continue Reading Love is in the Air? Practical Tips for Dealing with Workplace Relationships

In a recent speech, the head of the Antitrust Division of the U.S. Department of Justice (DOJ) once again warned companies about the antitrust risks of certain agreements among employers not to hire each other’s employees. The Federal Trade Commission and DOJ Antitrust Division have challenged these agreements for years. To avoid the new criminal risks that can come with some of these so-called “no-poach” agreements, companies should review any agreements with others regarding hiring practices and ensure their antitrust training is properly designed and targeted. Continue Reading DOJ Antitrust Division Again Emphasizes Risks of “No-Poach” Agreements

Board Member Philip Miscimarra’s term on the National Labor Relations Board (NLRB) expired last week with a bang rather than a whimper. In the final days of his tenure, the Board reversed four controversial Obama-era decisions addressing joint employers, workplace policies, micro-units, and the duty to bargain. These decisions, summarized below, will impact all employers, not just those with unionized workforces. Although the Board now returns to a 2-2 Republican to Democrat split as a result of Miscimarra’s departure, once his Republican replacement is confirmed employers should expect to see more decisions on the chopping block. Continue Reading NLRB Reverses Four Obama-Era Decisions

From Anita Hill’s allegations in the 1990s to the recent flood of allegations in the news headlines, sexual harassment has been a persistent and pervasive problem. It occurs at all levels, across all occupations. While many companies have policies addressing inappropriate and unwelcome sexual behavior in the workplace, those policies may not be enough. Continue Reading Tips on How to Proactively Address Workplace Harassment

As we previously blogged here, beginning on October 31, New York City businesses will no longer be allowed to ask about an applicant’s salary history during the hiring process.

Just in time for the law to go into effect, the NYC Commission on Human Rights has published a set of FAQs to help employers and the public navigate through the hiring process under this new law. Below are some key takeaways from the FAQs. According to the Commission’s guidance, this is how the law is expected to be applied.

Continue Reading Don’t Be Scared: Guidance Issued Ahead of Halloween Implementation of NYC Salary History Law

Technological advances are leading many businesses to collect and store the biometric data of their employees, contractors, and customers for purposes of identification and authentication. Biometric data has many uses, such as giving people access to their accounts and sensitive financial information, providing employees, contractors, and customers physical access to workplaces and businesses, and giving employees the ability to clock in and out of work without using keyfobs or ID cards. Continue Reading Illinois Businesses Beware: Class Action Suits on the Rise for Alleged Violations of the Illinois Biometric Information Privacy Act

How long is too long, when an employee requests leave for medical reasons? Employers have received welcome guidance from the Seventh Circuit U.S. Court of Appeals on this question. In Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017), the Seventh Circuit held that a request for a two to three month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (ADA). This is as close to a bright-line rule as could be hoped for in this all too murky area of ADA law.

Continue Reading Two to Three Month Leave of Absence Not a Reasonable Accommodation, 7th Circuit Holds