A Whistle Upon Deaf Ears: Changes to Dodd-Frank Whistleblower Protections

A Whistle Upon Deaf Ears: Changes to Dodd-Frank Whistleblower Protections On Wednesday, February 21st, the U.S. Supreme Court unanimously ruled that individuals who report allegations of corporate wrongdoing must do so to the Securities and Exchange Commission, not just to their own companies, in order to qualify for protections offered under the Dodd-Frank Act. The case in question, Digital Realty Trust v. Somers, involved Paul Somers, a former employee of Digital Realty Trust, a San Francisco-based real estate investment company. Somers detected foul-play in the company and reported mismanagement of funds and contracts to senior management. He was subsequently fired in 2014. Somers proceeded to sue, claiming that his termination was retaliation that violated the Dodd-Frank Act. Unfortunately for Somers, and other would-be whistleblowers, the Supreme Court disagreed. This decision is contrary to how the Dodd-Frank Act has been interpreted by many lower courts since its introduction in 2010. The Dodd-Frank Whistleblower Program includes payable awards to those who report information that leads to a successful action, as well as safeguards against employer retaliation. Whereas past interpretations offered these protections for those who reported issues internally, the Supreme Court decision suggests that the Act’s plain language limits its protections to specific instances where the individual has reported the violations in question directly to the SEC.  Digital…

Cash or Course Credit? Department of Labor Updates Guidelines for Unpaid Internships

Cash or Course Credit? Department of Labor Updates Guidelines for Unpaid Internships The designation between “employee” and “intern” can be a tricky one for employers. Depending on which you’re hiring, you may need to dole out wages and overtime pay. But new changes rolled out by the Department of Labor (DOL) this January could help clarify the dividing line and give employers more flexibility in crafting new positions. Since 2010, the DOL has touted a six-factor test to determine if workers could be considered employees under the Fair Labor Standards Act (FLSA). However, this month the DOL updated their policies to reflect a more commonly accepted methodology: a “primary beneficiary” test, which, as one might guess, focuses on whether the intern or the employer is the “primary beneficiary” of that relationship. The former six-factor test was a strict one which required that all factors be met for a position to qualify as an internship; if not, these interns would be considered employees, and therefore entitled to minimum wage and overtime pay. This was widely considered to be a hard standard to meet, and it became a problem for many employers as a result. Several courts adopted the primary beneficiary test as an alternative method, with the Second Circuit leading the way in Glatt v. Fox…

Fresh Off the Governor’s Desk: New Slate of Employment Laws for California Employers

Employers take note: a new slate of employment laws were signed into California law this month, with some taking effect as soon as January 1, 2018. Read on below to see how a few of these new developments may affect your business.   AB 450: Employers Prohibited from Consenting to ICE Searches   Signed by Governor Brown on October 5th, AB 450 prohibits California employers from voluntarily consenting to federal Immigration and Customs Enforcement (ICE) officers’ requests to search a workplace.  Like other searches conducted by government officials, workplace searches conducted to enforce federal immigration law require either a judicial warrant or consent to search.  AB 450 will remove the latter option, prohibiting employers from consenting to a search of any non-public premises or employee records and forcing immigration officials to pursue a judicial warrant in each case.   As part of a broader effort to make California a “Sanctuary State,” AB 450 is intended to frustrate the Trump administration’s more robust enforcement of federal immigration law.  However, in AB 450’s effort to protect undocumented workers and their employers from the hazards of immigration enforcement, the law puts employers in a tight spot between opposing state and federal interests.   A first-time violation will penalize an employer with a $2,000 to $5,000 civil penalty, which…

The EEOC’s Harassment Prevention Efforts Should Be Highlighted In The Wake of The Harvey Weinstein Debacle

The headlines in the news these last two weeks involving Hollywood producer Harvey Weinstein has put the spotlight on the issue of sexual harassment in the workplace.  But the Equal Employment Opportunity Commission (EEOC) has been attempting to focus our attention on the issue of workplace harassment for over a year now, when it issued a study of harassment in the workplace, in an effort to “reboot workplace harassment prevention efforts.”  The “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” (“the Report”) came out in June 2016, finding that workplace harassment remains a persistent problem and too often goes unreported.   The Select Task Force consisted of two EEOC commissioners as well as outside experts from employer, employee, human resources, academic, and other communities. The focus of the report, authored by co-chairs Chai R. Feldblum and Victoria A. Lipnic, was unwelcome or offensive conduct based on a protected characteristic under employment anti-discrimination law.   The Report noted some interesting statistics regarding the prevalence of harassment-based complaints. In 2015, the EEOC received approximately 28,000 charges that alleged harassment from employees working for private or state or local government employers, and 6,741 charges from federal government employees. Broken down by protected characteristic, sex-based harassment was most prevalent in…

Starting July 1, 2017, Employers Must Provide New Employees with Notice of Protections for Victims of Domestic Violence, Sexual Assault, or Stalking

Existing law prohibits an employer from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for certain purposes related to addressing the domestic violence, sexual assault, or stalking. As of July 1, 2017, employers with 25 or more employees must now provide written notice of the rights and duties under the existing law. A recent bill amended Labor Code section 230.1 to include employer notice requirements and ordered the Labor Commission to develop a sample form for employers to use to comply. If an employer chooses not to use the form, the notice used must be substantially similar in content and clarity. Whatever form is used must include information explaining an employee’s right to take time off, right to reasonable accommodations, right to be free from discrimination and retaliation, and right to file a complaint. Although the rights under Labor Code section 230 for employees who are victims of domestic violence, sexual assault, or stalking have not changed, the new notice requirement imparts more responsibility on employers and thus warrants a refresher. Right to Time Off – Employees who are the victims of domestic violence, sexual assault, or stalking are permitted to take time off to: Seek medical attention; Obtain…