The Sarbanes-Oxley Act (SOX) provides anti-retaliation protection to whistleblowers who engage in “protected activity.” To engage in protected activity under SOX, the whistleblower must provide information to the Securities and Exchange Commission (SEC) or another law enforcement agency, to Congress or one of its members, or to a “person with supervisory authority” over the whistleblower. The information must pertain to “any conduct” which the whistleblower “reasonably believes” constitutes a violation of at least one of six federal fraud laws enumerated under SOX. These laws are:
Articles Discussing Human Resources And Other Workplace Topics.
In a matter of first impression, the U.S. District Court for the Western District of Pennsylvania in Cestra v. Mylan Inc. No. 15-0873 (E.D. Pa., May 22, 2015) held that the antiretaliation provision of the False Claims Act applies to an employer who terminates an employee for engaging in protected conduct against an unrelated entity.
Australia’s national minimum wage and modern award pay rates are set to increase by 2.5% starting July 1, 2015. On June 2, 2015, the Minimum Wage Panel (the Panel) of the Fair Work Commission announced an increase to the minimum rates. The increase will affect over 1.86 million employees in Australia whose salary is at the minimum rate.
Executive Summary: In a unanimous decision, a panel of the United States Court of Appeals for the Ninth Circuit reversed a preliminary injunction arising out of an airline’s alleged violation of the status quo provisions of the Railway Labor Act (RLA). Int’l Bhd. Of Teamsters, Airline Division v. Allegiant Air, LLC, No. 14-16465 (9th Cir. June 8, 2015). The decision turned on whether an in-house “advocacy group” with which the airline had dealt on issues involving its pilots had become the pilots’ collective bargaining representative for purposes of the RLA, and whether work rules developed by the airline in coordination with the advocacy group constituted a “status quo” that the airline could not change unilaterally during its negotiations with the newly-certified representative of the pilots. The Ninth Circuit reversed the district court on both those points.
Executive Summary: Airlines achieved a major victory on May 19, 2015, with an order from the Central District of California granting Southwest Airlines Co.’s motion to dismiss in McKinley v. Southwest Airlines Co., United States District Court, Central District of California Case No. 2:15-cv-02939-AB-JPR, finding the plaintiff’s overtime claims to be preempted by the Railway Labor Act (RLA). Significantly, McKinley makes clear that when an employee’s claims focus on or require extensive analysis of the terms of a Collective Bargaining Agreement (CBA), the appropriate course for a court is to divest itself of jurisdiction in order to avoid creating inconsistent interpretations regarding the terms of the CBA.
Wait a minute. You mean to tell me that, even if I follow the guidance issued under the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA), in implementing a “legally-compliant” wellness program, I might still violate the Americans with Disabilities Act (ADA)?
On April 18, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule on the treatment of employer wellness programs under the Americans with Disabilities Act (ADA). The proposed rule amends the ADA regulations and interpretive guidance to address the use of incentives to encourage employees to participate in wellness programs that include disability-related inquiries and/or medical examinations. While the rule provides a degree of certainty in the design and administration of wellness programs, questions remain about the impact the EEOC’s guidance will have on the future development of wellness programs.
Cyber-security and data breaches are hot-button issues that recently received some well-deserved attention from the federal government.
The vast majority of large employers offer some sort of wellness program, according to a recent survey. We’ve posted about the risks and benefits of these programs in the past. Now, more than ever, employers with such programs should take note. The EEOC recently issued its highly anticipated proposed regulations amending how the ADA applies to these increasingly popular programs.
On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) issued its highly anticipated proposed regulations amending how Title I of the Americans with Disabilities Act (ADA) applies to the increasingly popular employer wellness programs. The proposed rule is designed to provide guidance on the extent to which the ADA permits employers to use incentives to encourage employees to participate in wellness programs. The proposed regulations identify employee health programs, define the nature of a voluntary program, clarify the permissible incentives an employer may offer, and explain the notice and confidentiality requirements. Eighty-eight percent of employers with 500 or more employees offer some sort of wellness program, according to a 2014 survey of employer-sponsored health plans by Mercer, the benefits consultant.
A CNN op-ed piece caught my eye recently as it discussed some of the difficulties the so-called millennial generation is having in Silicon Valley and elsewhere when it comes to finding gainful employment. It paints a very grim picture about “sharing economy” jobs like Uber, Lyft, or Instacart.
Executive Summary: The American Gaming Association estimates that Americans will wager $9 billion on the NCAA tournament, more than double the estimated $3.9 billion bet on the Super Bowl, bringing March Madness to a whole new level. Of that amount, only about $2 billion will be bet legally. See Estimated 40 million to fill out brackets, http://espn.go.com/chalk/story/_/id/12465741/estimated-70-million-brackets-9-million-bets-ncaa-tournament. Many of the illegal wagers will be made through the ubiquitous office pool. March Madness, Super Bowl, and Fantasy Football pools have become so ingrained in the American workplace that most view them as harmless. In fact, while arguing in support of legislation that would amend Pennsylvania’s small games of chance law to include small monetized pools conducted by individuals, Pennsylvania state senator Lisa Boscola pointed out these pools are so common one was even being circulated on the Senate floor at that time. See Pa. legislators battle state police over Super Bowl betting pools, http://www.timesherald.com/general-news/20150130/pa-legislators-battle-state-police-over-super-bowl-betting-pools. Boscola introduced the legislation after state police seized funds collected for Super Bowl pools by two volunteer fire departments and a social club in Pennsylvania, claiming the pools violated the federal Professional and Amateur Sports Protection Act (PASP).
Hillary Clinton recently made headlines for using her personal email account for business purposes during her tenure as Secretary of State. This high profile example provides us with an opportunity to reflect upon what is commonplace for some. It can be tempting for employees to use personal email accounts to conduct corporate business, particularly when working remotely. However, the highly sensitive nature of Clinton’s job raised questions over the security of using a non-work email account to transmit information. Depending on the nature of your job or the emails that you send, there are risks when mixing personal and business e-mails.
On March 5, 2015, OSHA issued amended procedures for the handling of retaliation complaints under Section 806 of the Sarbanes-Oxley Act of 2002. The amended procedures, now effective, govern employee protection claims. By way of background, on November 3, 2011, an interim final rule (“IFR”) governing these provisions and requesting comment was published in the Federal Register, 76 FR 68084. Pursuant to the IFR, five comments were received.
On March 5, 2015, the U.S. Department of Labor issued a Final Rule implementing protections for employees of securities companies and their subsidiaries, as well as employees of national credit-rating agencies. The Final Rule protects employees of public companies, their subsidiaries, contractors and subcontractors from retaliation for reporting actions they believe to be violations of securities laws. The Final Rule replaces the Interim Final Rule the DOL implemented on November 3, 2011, at the direction of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), which amended the Sarbanes-Oxley Act of 2002 (SOX). The Final Rule is effective immediately.