By now, even with 13 House and 2 Senate seats still undecided, it is clear that Republicans scored big on November 4. At last count, the Senate gained at least seven Republican seats, securing the GOP’s control of Congress’s upper chamber. Republicans gained a sizable number of seats in the House of Representatives as well, with the current Republican-Democrat breakdown of 243-180. So what does this mean for employers? A lot.
Articles Discussing Human Resources And Other Workplace Topics.
At 2 a.m. on Sunday, November 2, 2014, people all across the United States turn their clocks back one hour to end Daylight Saving Time (DST). For many, the change simply means an extra hour of sleep. However, for employers, the time change has unique and important implications. While most employers have developed protocols for dealing with the technological requirements of the time shift — such as adjusting the time in their computer systems, voice-mail, and time clocks — many employers may not be prepared for the other impacts of the time change caused by the end of DST.
Innovations in technology have blurred the lines between work and private life. Many professionals regularly utilize personal devices, such as smart phones and tablets, while in the office, and can likewise access company files electronically through work-issued computers while at home. Given the lack of a bright-line distinction between that which is work and that which is private, employees may be tempted to engage in conduct on personal accounts or devices that would otherwise be clearly prohibited in the office.
Election season can be a heated time. In many contexts, this can mean arguments with friends, family, and acquaintances. It can also mean added tension and disagreement in the workplace. In some cases, employers may seek to minimize political discussions at work. In others, employers themselves may try to introduce politics into the workplace. Regardless of whether an employee may engage in political activity in the workplace, employees may have rights to conduct political activities outside of work, and to take time off from work, where needed, to vote in an election.
Long awaited in Sarbanes-Oxley Act (SOX) whistleblower circles, on October 9, 2014 the U. S. Department of Labor’s Administrative Review Board (ARB) issued a split 2-1 panel decision in Fordham v. Fannie Mae, ARB No. 12-061, reversing in part and remanding an administrative law judge’s post-hearing dismissal of a former employee’s Section 806 whistleblower retaliation claim. The ARB’s decision in Fordham is significant because it addresses squarely, and at length, how ALJs and OSHA investigators should apply the separate and two-stage burden of proof required under Section 806 whistleblower retaliation claims. The result of the ARB’s Fordham decision likely will energize the plaintiffs’ bar, and could make it more difficult for covered employers – and their contractors and subcontractors based on Lawson v. FMR LLC – to obtain dismissals of SOX Section 806 whistleblower retaliation claims, whether at the investigatory stage or following a full-blown evidentiary hearing before an ALJ. If the ARB’s decision is appealed but withstands judicial review, Fordham v. Fannie Mae could lead to a sea change in publicly traded employers’ and their contractors’ and subcontractors’ involvement in, and potential exposure to, SOX whistleblower claims.
Recently, we detailed the efforts to push for paid sick leave by state and local governments in light of California’s passage of a statewide paid leave law. Soon after our post, the U.S. Department of Labor’s Women’s Bureau Director Latifa Lyles posted an entry on the DOL’s official “Work in Progress” blog, advocating for broader paid family leave across the country. Lyle notes that the United States remains the only industrialized nation without paid family leave. The post included data from the Bureau of Labor Statistics and offered arguments in support of paid leave.
As multinational employers are aware, compliance with the anti-corruption laws of different jurisdictions can be complicated, and penalties for noncompliance can be severe, making compliance a priority for multinational companies. FordHarrison has joined with Ius Laboris member firms in Central and South America to produce Corruption in the Americas, a summary of anti-corruption laws in the U.S. and Central and South America. The guide provides key information at a glance on important aspects of the anti-corruption laws, including compliance, relevant laws and regulations, and penalties. The guide is available on the Ius Laboris website as well as the In-Depth Analysis page of the FordHarrison website.
A suit brought by the Equal Employment Opportunity Commission (EEOC) against national clothing retailer Abercrombie & Fitch Stores, Inc., demonstrates why employers should carefully review any dress code policies with counsel, particularly as they may conflict with attire worn for religious reasons. Interestingly, the case could have important ramifications not only for employers but also employees.
On September 22, 2014, the Securities and Exchange Commission’s (SEC) Office of the Whistleblower announced that it had issued a $30 million bounty payment to a foreign whistleblower. This award is more than double the amount of any previous payment issued by the Office of the Whistleblower and comes fast on the heels of a $300,000 payment to a whistleblower who worked as a compliance professional. The magnitude of the $30 million award and the payout to a company’s own compliance advisor underscore a fundamental shift in enforcement strategy among regulatory agencies – a shift from encouraging internal corporate compliance to policing corporate conduct by encouraging employees to report directly to the government.
Employers across the country continue to misclassify workers as independent contractors rather than as employees, and as we recently saw in Alexander v. FedEx Ground Package System, Inc., such actions can result in litigation and federal and state scrutiny.
Executive Summary: The recent criminal prosecution of several 7-Eleven franchisees, which arose out of a criminal alien employment investigation, as well as efforts by government agencies to treat franchisors and franchisees as joint employers for the purposes of liability under federal labor and wage and hour laws, highlights the need for franchisors to take proactive steps to ensure they and their franchisees are in compliance with applicable labor, immigration and employment laws.
In Alexander v. FedEx Ground Package System, Inc., 2014 U.S. App. LEXIS 16585 (9th Cir. Aug. 27, 2014), the Ninth Circuit Court of Appeals held that former Federal Express drivers were employees rather than independent contractors pursuant to California’s right-to-control test. This important decision is likely to reach across all industries and will cause regulators and attorneys to closely examine independent contractor agreements to determine if the employer retains sufficient direction and control over the manner or means by which the work is to be performed. This case teaches that no matter how workers are labeled by the employer, the substance of the work relationship is what controls the classification status.
The U.S. Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum1 upholding the dismissal of an Alien Tort Claims Act (ATCA) suit, left a great deal unanswered. The Kiobel decision did, however, limit the potential for future ATCA claims by applying a strong presumption against that statute’s extraterritorial application. There have since been some mixed appellate court decisions regarding the statute’s extraterritorial application,2 but a recent decision by the U.S. Court of Appeals for the Ninth Circuit may reflect a greater willingness by certain federal courts to accept ATCA suits against corporate defendants. In Doe v. Nestle USA, Inc. et al., the appellate court reversed the trial court’s decision to grant the corporate defendants’ motions to dismiss the plaintiffs’ ATCA claims, gave the plaintiffs the opportunity to re-plead their complaint in light of the presumption against the ATCA’s overseas application, and rather broadly construed still unresolved issues of corporate and “aiding and abetting” liability.
Yesterday, Douglas Hall, a partner in the Airline Group of FordHarrison, appeared before an en banc panel of the Ninth U.S. Circuit Court of Appeals to defend an injunction obtained on behalf of Aircraft Service International, Inc. against a strike threatened by some of its non-union employees at the Seattle-Tacoma International Airport. The employees threatened to strike if the company did not immediately revoke the investigatory suspension of an ASIG employee and address alleged safety concerns. The strike was enjoined on the grounds that it would violate the RLA; that was affirmed by a 3-judge panel of the Ninth Circuit. The defendants petitioned for rehearing en banc, arguing that the RLA’s dispute resolution procedures did not apply to non-union employees, and thus the Norris-LaGuardia Act prohibited the injunction.
In an ongoing effort by the federal government to encourage Wall Street whistleblowers, U.S. Attorney General Eric Holder has called for greater awards for those who report financial fraud. Speaking on Wednesday at the New York University School of Law, Holder stressed that limits on the amount a whistleblower receives could be preventing many individuals from reporting illegal activities.