4 Greenberg Traurig Attorneys Listed in Who’s Who Legal, Labour & Employment 2017

Posted in Benefits, Labor

Four attorneys from global law firm Greenberg Traurig, LLP have been recognized in Who’s Who Legal: Labour, Employment & Benefits Guide 2017. Featured in the guide are:

Labor & Employment

  • Peter W. Zinober, who specializes in the defense of employment discrimination cases in state and federal court, both jury and non-jury, as well as wage and hour, disability discrimination, Sarbanes-Oxley, Dodd-Frank, and other whistleblower defense, age, and all other types of employment litigation. Zinober is a shareholder in the firm’s Tampa and Orlando offices.
  • Robert M. Goldich, who has more than 35 years of experience as a labor and employment lawyer and litigator representing employers in all aspects of labor and employee relations, including general employment counseling, employment contract negotiation, collective bargaining negotiations, labor arbitration, and the representation of employers in administrative and courtroom litigation. Goldich is a shareholder in the firm’s Philadelphia and Phoenix offices.
  • Jordan W. Cowman, who handles diverse employment matters, including employment discrimination and wrongful termination cases, wage and hour compliance, labor arbitration cases, non-competition cases, and internal corporate investigations. Cowman is a shareholder in the firm’s Dallas and Houston offices.

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Employers With Arbitration Programs Need To Read This – Sixth Circuit Refuses To Stop Collective Action Notice To Employees with Individual Arbitration Agreements

Posted in Arbitration, FLSA

A Sixth Circuit opinion filed this week reaffirms what experienced Fair Labor Standards Act (FLSA) attorneys have known for some time:  when it comes to employer arbitration programs, they are not always the panacea that employers (and their lawyers) believe them to be. In Taylor v. Pilot Corp. et al., Case No. 16-5326, a plaintiff-employee filed a FLSA collective action against her employer. As is typical, she promptly asked the court to authorize the sending of notice of the lawsuit to other “similarly situated” employees, asking if they wanted to participate, or “opt in,” to the lawsuit. The defendant employer opposed, arguing in part that numerous putative collective action members were party to arbitration agreements that prevented them from participating in class, collective, or group actions. The district court nevertheless authorized sending the notice – including to those employees who had agreed to arbitrate any disputes they had with the defendant on an individual basis. The Sixth Circuit declined to disturb the district court’s decision to send notice to employees with individual arbitration agreements, holding that it lacked jurisdiction to do so because conditional certification decisions under the FLSA, unlike class certification decisions under Rule 23, are not subject to interlocutory appeal. The net effect is a ruling that arguably shifts the court’s role, tacitly authorizing broad notice programs in FLSA collective actions to include employees who admittedly may not be able to participate in the litigation due to an agreement to arbitrate.

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Are Employers Ready for Arizona’s New Paid Sick Leave Law?

Posted in Benefits, Compensation, State Law

On July 1, 2017, Arizona’s new sick leave law goes into effect and employers with even one employee in Arizona may need assistance to navigate the new laws and to review and revise policies, practices, and recordkeeping to comply.   As a mere start, there are seven key aspects of this new law that Arizona employers should know:

1. How much earned paid sick leave must be provided by an employer?

For employers with 15 or more employees: Employees must accrue a minimum of one hour of earned paid sick time for every 30 hours worked, but employees are not entitled to accrue or use more than 40 hours of earned paid sick time per year, unless the employer selects a higher limit.

For employers with fewer than 15 employees: Employees must accrue a minimum of one hour of earned paid sick time for every 30 hours worked, but they are not entitled to accrue or use more than 24 hours of earned paid sick time per year, unless the employer sets a higher limit.

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DOL Announces Reversal of Employee/Independent Contractor Classification & Joint Employer Guidance

Posted in Employee Classifications, FLSA

On June 7, 2017, the United States Department of Labor (DOL) reversed its previous guidance issued during the administration of President Barack Obama that broadened the circumstances in which employers could be held liable for misclassification of employees as independent contractors, and as a joint employer with a separate business.  New Secretary of Labor Alex Acosta announced that the DOL was withdrawing two letters: (1) a 2015 letter that encouraged scrutiny of employer-independent contractor relationship pursuant to the “economic realities test;” and (2) a separate 2016 letter that interpreted joint employment under the Fair Labor Standards Act (FLSA) with a separate entity as occurring, so long as both employers exercised “indirect” control over the worker.   Although the letters were never legally binding, they served as a blueprint for how the DOL enforced federal laws and represented persuasive authority to courts.

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The Defend Trade Secrets Act – One Year Later

Posted in Trade Secrets

The Defend Trade Secrets Act (DTSA) celebrates its one-year anniversary on May 11, 2017. The DTSA is the most significant expansion of intellectual property law since the Lanham Act was passed in the 1940s. Approximately 70 cases were filed in California federal courts asserting DTSA claims in the past year; but, after one year of litigation, it is still too early to tell how much impact the DTSA has made on trade secret law in California. Nevertheless, even a one year anniversary is worth marking.

The Differences Between the California Uniform Trade Secret Act and the DTSA

The DTSA automatically bestows federal jurisdiction on trade secret claims, allowing DTSA claims to be brought exclusively in federal court. Although trade secret theft has been a federal crime since 1996, prior to the passage of the DTSA, civil claims for trade secret misappropriation were typically governed by state law. The California Uniform Trade Secret Law (CUTSA) cannot be brought in federal court, absent a showing of diversity or concurrent jurisdiction under another claim arising from the same transaction or occurrence as the CUTSA claim. CUTSA also broadly preempts common law claims based on the same nucleus of facts as the trade secrets claim, however the claim is characterized, such as breach of fiduciary duty, breach of loyalty, conversion, fraud, interference with contract, or unfair competition. In contrast, the DTSA does not preempt any provisions of law, including state trade secret laws, such that a plaintiff filing suit in California can bring both a DTSA and CUTSA claim in federal court. The plaintiff must weigh, in bringing both, whether it wants to allege a CUTSA violation and thereby bar the assertion of related state law tort and restitution claims. Notably, a DTSA claim cannot be brought in state court. Finally, because there are many parallels between the CUTSA and DTSA, federal courts can be expected to consider CUTSA precedent and, longer-term, California courts will likewise consider DTSA decisions.

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New York City to Prohibit Employer Inquiries into Salary History

Posted in Discrimination, Wage & Hour

On May 4, 2017, New York City amended its Human Rights Law (NYCHRL) to join the growing number of municipalities that prohibit employers from inquiring about applicants’ wage history. Ostensibly designed to “help break the cycle of gender pay inequity[,]” this new restriction may open employers to yet another theory the plaintiffs’ bar can seek to exploit.

Beginning Oct. 31, 2017, it will be “an unlawful discriminatory practice” under the NYCHRL for an employer (i) to inquire about the salary history of an applicant, or (ii) to rely on the salary history of an applicant in determining compensation during the hiring process. The term “inquire” is broadly defined, and includes not only asking an applicant what he or she has been paid by prior or current employers, but also searching public records to obtain that information. The law does not prohibit (i) inquiries into objective productivity metrics “such as revenue, sales, or other production reports,” (ii) discussing with an applicant “their expectations with respect to salary, benefits and other compensation,” or (iii) verifying and considering an applicant’s salary history where he or she “voluntarily and without prompting discloses” it.

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House of Representatives Passes Overtime Bill to Give Workers Time Off Instead of Time-And-A-Half Pay

Posted in FLSA

On May 2, 2017, the United States House of Representatives (the House) passed the Working Families Flexibility Act (the Act), which would give workers the option of receiving paid time off (PTO) instead of time-and-a-half pay currently mandated by the Fair Labor Standards Act (the FLSA). The Act passed 227-197, largely along party lines, with no Democrats in favor of it and six Republicans opposed.  The Act will now go to the Senate, where it is expected that the Act will face opposition from Senate Democrats. President Donald Trump has indicated that he would sign the Act into law if presented to him in its current form.

Under the FLSA, covered, non-exempt employees must receive overtime pay for hours worked over 40 in a workweek, at a rate not less than time and one-half their regular rate of pay. An employee’s regular rate of pay is determined on a piece-rate, salary, commission, or other basis, but the overtime pay rate must be calculated using the average hourly rate derived from the employee’s earnings. Employers determine the average hourly rate by dividing the total pay received by the employee in any work week by the 40 hours. The employer then pays the employee overtime for each hour over 40 at time-and-a-half of the average rate.

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OSHA Rescinds Fairfax Memo – OSHA No Longer Required to Permit Union Reps to Represent Non-Union Employees in Walkaround Inspections

Posted in OSHA

On April 25, 2017, the Occupational Safety and Health Administration (OSHA) rescinded a Feb. 21, 2013 letter from former Deputy Assistant Secretary Richard E. Fairfax to Mr. Steve Sallman (Fairfax Memo) that permitted workers at a worksite without a collective bargaining agreement to designate a person affiliated with a union or community organization to act on their behalf as a representative during an OSHA walkaround inspection.

Employers have viewed the Fairfax Memo as a way for unions to get access to employees that they hope to unionize. With the rescission of this memo, employers are no longer required to permit union officials to represent workers at a worksite without a collective bargaining agreement during an OSHA walkaround inspection.

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Ninth Circuit Widens Circuit Split on Whether Dodd-Frank Protects Internal Whistleblowing

Posted in Sarbanes-Oxley, SEC, Whistleblower

Introduction

On March 8, 2017, in Somers v. Digital Realty Trust Inc., No.15-cv-17352 (9th Cir., March 8, 2017), the Ninth Circuit Court of Appeals affirmed the district court’s denial of the defendant’s motion to dismiss a whistleblower claim brought under the Dodd-Frank Act’s (“DFA”)’s anti-retaliation provision.

In a 2-1 decision, the majority endorsed the approach of the Second Circuit, and not that of the Fifth Circuit, in holding that Congress did not intend to limit DFA whistleblower protections to only those who disclose information to the Securities and Exchange Commission (“SEC”). Rather, the court held that the DFA anti-retaliation provision also protects those who are fired after making internal disclosures of allegedly unlawful activity under the Sarbanes-Oxley Act (“SOX”) and other securities laws, rules, and regulations.

The majority also agreed with the Second Circuit that, to the extent there was any ambiguity in the statute, an SEC regulation, 17 C.F.R. § 240.21F-2 (Rule 21F-2) interpreting the DFA to protect those who made only internal disclosures resolved any such ambiguity and was entitled to Chevron deference.

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The Senate Narrows Employers’ Obligation to Accurately Record Work-Related Injury and Illness Records

Posted in OSHA

On March 22, 2017, the Senate passed H.J. Resolution 83, a Congressional Review Act (CRA) resolution (Resolution) that cuts the Occupational Safety and Health Administration’s (OSHA) ability to cite an employer for failing to accurately record work-related injuries and illnesses from five years to six months.1 The resolution blocks and eliminates OSHA’s “Volks” final rule, also known as “Clarification of an Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” (Final Rule). The Final Rule, which went into effect Jan. 19, 2017, gave OSHA the authority to fine and cite employers that failed to accurately track and record work-related injuries and illnesses for up to five years after they occur.

If President Trump signs the resolution (which he is expected to do), OSHA will only be permitted to cite employers for failing to keep accurate records of workplace incidents up to six months after the recordkeeping violation occurred. OSHA will also be barred from passing a substantially similar measure; Congress must pass a law instead, which is usually a more difficult process.

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