Header graphic for print

Employment Matters Blog

Fifth Circuit Holds Third Party Witness’ Retaliation Claim Requires “Reasonable Belief” That a Title VII Violation Has Occurred

Posted in Discrimination & Harassment, EEOC, Employer liability, Investigations, Retaliation, Summary judgment, Title VII

The Fifth Circuit recently held that a third party witness who was fired after providing information in response to her employer’s investigation of a coworker’s harassment allegations had to demonstrate she had a “reasonable belief” that the conduct she reported violated Title VII in order to prove her retaliation claim.

Continue Reading

Innocents Abroad: Employment Agreements for Employees Working In High Risk Countries

Posted in Human Resources, Immigration

From:             Ned Help

To:                  Carrie Counselor

Date:               May 4, 2016

Subject:          Employment Agreements for Employees Working In High Risk Countries

Carrie:

Thanks again for your guidance over the past several weeks.  Now that we’ve tackled updating our offer letters for employees working abroad, I’d like to look at our employment agreements.  What provisions should our company consider including in employment agreements for employees who will be working in high risk countries?

Thanks,
Ned

Continue Reading

Have You Reviewed your Employee Handbook for Affordable Care Act Compliance?

Posted in Affordable Care Act, DOL, Employee Handbook, IRS

Even though the Affordable Care Act’s employer mandate is in effect and fully phased-in, it has been our experience that few employers have bothered to review their employee handbooks to reflect the ACA.  Below we discuss how employers may bolster their ACA compliance (and avoid ACA penalties) through an ACA-focused employee handbook review.

Continue Reading

The New York Times: In 11 Missing Words, Some See Shift in NCAA Case Against UNC

Posted in Employer liability, NCAA

My colleague Tyrone Thomas was quoted in The New York Times article entitled, In 11 Missing Words, Some See Shift in NCAA Case Against UNC, in which he addresses the potential impact of the NCAA allegations against the University of North Carolina (UNC) for its alleged lack of institutional control pertaining to the supervision of the academic program for student athletes. The article describes the overall implications of the NCAA’s amended notice of allegations to UNC for its role in a scheme of paper classes that disproportionately favored athletes.

Trade Secrets Going Federal

Posted in Trade Secrets

Yesterday, in an overwhelming 410-2 bipartisan vote, the US House of Representatives passed the Hatch-Coons Defend Trade Secrets Act (DTSA), which would for the first time federalize trade secrets law and provide uniformity (and hopefully predictability) to what has, until this point, been a patchwork area of law applied disparately among the states.  The legislation already passed unanimously in the Senate earlier this month, and President Obama has promised to sign the bill into law.

Continue Reading

Dodd-Frank and Executive Compensation – Part 1: Status Update

Posted in Executive Compensation, IRS, SEC

It’s been over five years since the signing of the Dodd-Frank Wall Street Reform and Consumer Act (“Dodd-Frank”) and we are still waiting for the U.S. Securities and Exchange Commission to finalize rules on several provisions related to executive compensation.  Below is a summary of the current landscape of Dodd-Frank as it relates to key executive compensation provisions. Over the coming months, we will be posting a series of blog posts addressing some of the nuances of these provisions.  Stay tuned for more.

Continue Reading

Work Rules Hanging in the Balance? NLRB Dissenter Proposes Balancing Test Blueprint for Work Rule Challenges, a Significant Departure from Board Precedent

Posted in NLRA, NLRB, Section 7 Rights

Earlier this month, the NLRB struck down a couple of facially-neutral workplace civility rules in an employer’s Code of Conduct.  Ho hum, business as usual.  (We have written extensively about the Board’s crusade against what it considers overbroad work rules.  See, for example, our posts here, here and here)  What is fascinating, however, about this otherwise unremarkable decision is the spirited dissent penned by Member Philip A. Miscimarra, calling for the NLRB to overrule Board precedent which renders unlawful all employment policies, work rules and handbook provisions whenever employees could “reasonably construe” the language to prohibit the exercise of rights afforded by National Labor Relations Act Section 7, which protects “concerted” activities that employees engage in for the purpose of “mutual aid or protection.”  Rather, as detailed below, Member Miscimarra proposes a balancing test, which would take into consideration, at minimum, (i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.

Continue Reading

Uber Aims to Settle Two Class Actions; Approximately 385,000 Uber Drivers in California and Massachusetts to Remain Independent Contractors – At Least for Now

Posted in California, Class action, Independent Contractors, Litigation, Massachusetts, Wage and Hour Issues

Last Thursday, Uber settled two closely-watched class actions contesting Uber’s classification of approximately 385,000 drivers in California and Massachusetts as independent contractors as opposed to employees. While the plaintiffs viewed the settlement as a victory, so likely did Uber, as it allows Uber to continue to pursue an on-demand independent contractor service business model.  The court, however, still needs to approve the settlement and whether it will do so is not clear. Continue Reading

Innocents Abroad: Emergency at the Border—Key Considerations

Posted in Human Resources, Immigration

From:             Ned Help

To:                  Carrie Counselor

Date:               April 21, 2016

Subject:          URGENT: Employee Detained at the Airport?

Carrie:

What an afternoon!  When Winston Wild’s manager called me, indicating that he was detained at Pearson International Airport, we did not know what to do, which is why I called you.

Thank you for calling Winston Wild so quickly and explaining that he was only delayed and placed in Secondary Inspection.  This scare made me realize that I have little understanding about what our employees might experience at the airport and what could go wrong.  When you have a moment, please explain what you mean by “secondary inspection” and strategies we can employ internally when something goes awry at the airport.

Continue Reading

“On Call” Shifts Still In the Hot Seat in Massachusetts

Posted in Employer liability, Employment Legislation, MA Wage and Hour Laws, Massachusetts, Staffing

The Massachusetts Attorney General’s Office Fair Labor Division has joined a multistate effort questioning retail stores’ use of “on call” shifts.  Last week, the Massachusetts AG’s Office teamed up with its counterparts from New York, California, Connecticut, the District of Columbia, Illinois, Maryland, Minnesota, and Rhode Island to send requests for information regarding “on call” shifts to 15 national retailers with locations in Massachusetts.  The letters (see an example here) cite to concerns over the toll that “on call” shifts can have on employees, including difficulty making reliable child-care arrangements and obstacles to pursuing an education or a second job.

Continue Reading