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…

The EEOC Supports its 2017 Performance Report with Enforcement and Litigation Data

The EEOC Supports its 2017 Performance Report with Enforcement and Litigation Data The Equal Employment Opportunity Commission (EEOC) just followed up its performance report for the 2017 fiscal year with the release of enforcement and litigation data. The data shows retaliation as the number one charge filed by employees, with nearly 50% of all charges in the nation including a retaliation component. Retaliation was followed by race (33.9%), disability (31.9%), and sex discrimination (30.4%) charges. California had the privilege of being the third most charged state in 2017, carrying 6.4% of the nation’s charges, falling behind Florida (8.1%) and Texas (10.5%). Interestingly, California had higher rates of age and national origin discrimination charges compared to the national average. With the high volume of charges being filed in California, it is best to be proactive. If you have questions about what steps you can take before the EEOC comes a-knockin’ or after notice of a charge feel free to contact our friendly employment law attorneys.

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…

A New Era of Salary Transparency Could Lead to Headaches for Employers

There has been a major culture shift in this country in the way we discuss pay; once a subject rarely discussed will become easily accessible on the internet at least with respect to larger companies. California’s Gender Pay Transparency Act, Assembly Bill (AB) 1209, if signed by Governor Brown this October would require private employers with 500 or more employees to compute the wage differences by gender for exempt employees and board members located in California and file a report with the California Secretary of State who would then publish the information on a public website.  AB 1209 has passed both houses and is on its way to Governor Jerry Brown’s desk to be signed or vetoed. If signed, the Act would require employers to collect and compute the difference between wages of male and female exempt employees in California using the mean and median wages in each job classification or title; the difference between the mean and median wages of male board members and female board members located in California, and the number of employees used for these determinations and report this information every two years beginning January 1, 2020. The proponents of AB 1209 argue that transparency requirements increase awareness of pay gaps and result in shrinking the gaps. Opponents including the California…

Employers Prevail in Two Recent Age Discrimination Cases In California

They say “40 is the new 30,” and in the U.S. labor market that appears to be the trend.  According to the Bureau of Labor Statistics, by 2024, the median age of the labor force will be 42.4, up from 37.7 in 1994. [Link] Yet under California’s Fair Employment and Housing Act, “40” is a protected class, just like race, gender or disability status. Government Code section 12940 et seq. prohibits an employer from taking adverse employment action against an employee who is 40 years or older because of that employee’s age.   In two recent appellate court decisions, employers were victorious in debunking claims that they engaged in unlawful age discrimination.   In Merrick v. Hilton Worldwide, Inc. [link], a 60-year-old former Hilton Hotel employee brought suit in federal court in San Diego claiming he was terminated from his position as Director of Property Operations at Hilton’s La Jolla Torrey Pines Hotel because of his age. Merrick was terminated as part of the hotel’s reduction-in-workforce that took place due to a decline in revenue. The company considered twenty-nine management level employees for lay off and chose Merrick because his position did not add revenue for the hotel (like food or beverage service), he had limited guest contact so the impact on guests was limited,…

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…

California Appellate Court Holds Supervisor-Induced Stress Is Not a Disability

Employers in California with five or more employees must be concerned with both mental and physical disability discrimination allegations under the Fair Employment and Housing Act (FEHA).  The definition of mental disability is expanding.  Offering some hope to employers, however, California’s Third District Court of Appeal in Higgins-Williams v. Sutter Medical Foundation, 2015 Cal. App. Lexis 455 (May 26, 2015) found no disability where the plaintiff was diagnosed by her treating physician as having an adjustment disorder with anxiety resulting from dealing with Human Resources and her manager.  Sutter granted Plaintiff Michaelin Higgins-Williams leave under the California Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA) based on this diagnosis, but she exhausted the maximum amount of leave she could take under these laws. Ms. Higgins-Williams then returned to work briefly.  She received a negative performance evaluation by her supervisor and alleged she was singled out and given an inappropriate amount of work.  Ms. Higgins-Williams claimed her manager grabbed her arm and yelled at her, after which she suffered a panic attack and left work, never to return. Sutter allowed Ms. Higgins-Williams five months leave of absence based on a variety of doctor’s notes and as an accommodation for her disability.  The doctor’s notes first stated that Ms. Higgins-Williams could come back to…

Murphy, Campbell, Alliston & Quinn a Sacramento law firm

Whose Email Is It Anyway?

Whose Email Is It Anyway? A Recent Decision By The National Labor Relations Board Creates A Presumption Allowing Employees To Use The Employer’s Email System On Non-Working Time To Communicate With Other Employees About The Terms And Conditions Of Their Employment             In a decision issued on December 11, 2014, the National Labor Relations Board overruled an earlier decision and held that where an employer has chosen to give its employees access to the employer’s email system, employees can use the employer’s email on non-working time to engage in communications that are protected by Section 7 of the National Labor Relations Act, including communicating about union organizing.  Prior to this ruling, employees did not have a right to use their employer’s email system for Section 7 purposes, as held by the Board in its 2007 decision, Register Guard, 351 NLRB 1110 (2007). In this most recent decision, Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Case Nos. 21-CA-095151 and 22-RC-091584, the Board found that its decision in Register Guard was incorrect.  The Board noted that “[t]here is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings.”  The Board found that the employee’s right under Section 7 of the National Labor…