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Managing the Modern Workplace
V&E International Labor & Employment Resources

Moving to Texas — Signed, the California Gig Economy

In Dynamex Operations West, Inc. v. Superior Court of Los Angeles County, the California Supreme Court joined a handful of other states, including Massachusetts, in adopting the “ABC test” to determine whether a worker is an employee or an independent contractor. The reach of Dynamex is currently cabined to state wage orders, which regulate certain terms of employment, such as state minimum wage, overtime, and meal and rest breaks. The ABC test is a stark departure from the common-law test focused primarily on the degree of control a hiring entity exercised, or had the right to exercise, over an individual — which is the test that still applies, for now, to claims arising under the California Labor Code and other statutes. Recall our earlier post on the Grubhub decision, in which we outlined various factors companies might consider under the common-law test when classifying workers as independent contractors or employees.

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Employers With Class Action Waivers in Arbitration Agreements Vindicated

As we have repeatedly discussed on the Managing the Modern Workplace blog, the fate of employers’ dispute resolution programs, and other arbitration clauses that include class and collective action waivers, has long hung in the balance. Today, in a 5-4 decision authored by Justice Gorsuch, the Court resolved the question of the enforceability of class and collective action waivers in favor of employers.

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Don't Be Surprised When an Employment Case Is SLAPP'ed

Consider a scenario that many in-house lawyers and HR professionals are all-too familiar with: an employee is terminated or leaves the company. After the employee’s departure, the company learns the employee has gone to work for a competitor, and after checking the employee’s computer, the company learns he plugged in a flash drive and downloaded files containing confidential information, including customer lists, just days before leaving. Under this scenario, the employee signed an employment agreement containing non-compete, non-solicit, and confidentiality provisions. 

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DOJ Settles Enforcement Action Targeting “No Poach” Agreements

In our February post discussing this issue, we predicted that federal criminal antitrust prosecutions of no-poaching and no-hire agreements were on the near horizon due to the U.S. Department of Justice, Antitrust Division’s (“DOJ”) October 2016 guidance alerting companies and HR professionals to beware of the antitrust risk involved in hiring and compensation decisions. Making good on these warnings, the DOJ recently announced a settlement with two of the world’s largest rail equipment suppliers (Germany-based Knorr-Bremse AG (“Knorr”) and Delaware corporation Westinghouse Air Brake Technologies Corporation (“Wabtec”)) to resolve allegations that the companies maintained long-standing agreements not to compete for employees.

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  • 10
  • May
  • 2018

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Frequent 15-Minute Breaks Under FMLA Are Non-Compensable

While a small number of states require employers to give non-exempt employees breaks, there is no such requirement under federal law. However, if an employer decides to allow employees to take short rest breaks, they must compensate them during the time. (Employers do not have to compensate employees for longer meal breaks so long as the employees are completely relieved from duty).

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SEC’s Safe-Harbor Whistleblower Provision Proves Treacherous to Companies

The U.S. Securities and Exchange Commission (“SEC”) made additional waves since last month’s post, by recently announcing the first monetary award under the Dodd-Frank safe-harbor provisions. The Dodd-Frank Act allows individuals who report information about possible securities violations to the SEC to recover an award of between 10 and 30 percent of any sanctions levied of more than $1 million. To qualify for an award as a whistleblower, the information provided must be “original.” This means that the SEC needed to receive the information from the whistleblower first, and not from another agency. There is an exception to this rule however (called the “safe harbor”): As long as the whistleblower sends the information to the SEC within 120 days after first reporting the same information to another agency, then the SEC will treat the information as original.

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Responding to #MeToo Part I: Building an Effective Anti-harassment Training Program

The #MeToo movement presents unique challenges not only for human resources managers and general counsel, but also for boards that are increasingly recognizing the reputational damage that can be caused by workplace complaints. What is the best way to prevent workplace harassment from happening in the first place? In this video, Chris Bacon, describes three fundamental components of all effective anti-harassment training programs: they have support from upper management, are structured to be interactive, and promote empathy as a way of discouraging people from feeling threatened by corporate diversity efforts. 

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  • 01
  • May
  • 2018

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Drugs and Guns

Worker shortages, relaxed views on drug use in the context of an opioid abuse epidemic, and issues related to gun violence are creating new challenges in workplaces in the United States. Record-low unemployment and increasingly limited immigration options are making qualified candidates more difficult to find. The movement to legalize marijuana has taken hold in America; despite marijuana’s use remaining a federal crime, there are nine states and Washington D.C. that have legalized its use. And concerns over both workplace gun violence and individual gun rights have intensified. These cultural and economic factors present challenges to employers seeking to respect individual rights while maintaining safe and lawful workplaces.

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  • 24
  • April
  • 2018

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DOL Clarifies Travel Time Regulations

One of the more complicated issues for payroll managers is determining when they must pay a non-exempt employee for their travel time. The rules for single day trips have always been fairly simple; most travel time (except ordinary home-to-work travel) is usually compensable, except for travel from an employee’s home to the airport, in which case, the clock starts when the employee arrives at the airport and stops when the employee returns to the airport in their home city. If the employee’s flight is delayed, the time is compensable.

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  • 19
  • April
  • 2018

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Title VII Protection for Transgender Status and Sexual Orientation

Several circuit courts — including, most recently, the Second Circuit in Zarda v. Altitude Express, Inc. — have decided whether sexual orientation and transgender status are protected characteristics under Title VII (we discussed one of those decisions here). Courts in our neck of the woods, however, have offered little guidance in this area so far. Although the Fifth Circuit (covering Texas, Louisiana, and Mississippi) has yet to weigh in on these issues, a Texas federal court recently issued the first decision in the state indicating that sexual orientation may be protected (Title VII’s applicability to transgender status has been considered by at least one Texas court to date).

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  • 17
  • April
  • 2018

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Why Employers Should be Concerned About Equal Pay

Consider this common scenario: You have interviewed multiple candidates for a management position in your company. Everyone agrees that the only female candidate who applied for the position is clearly the best candidate. You meet with her again and ask her what kind of salary it would take to persuade her to come to work for your company. She voluntarily discloses that she is currently making $80,000 and would like to earn $90,000. You would have been willing to offer her a salary of $110,000 because that is what you recently agreed to pay a similarly qualified male candidate, but you offer her $100,000 instead, thinking that you are already exceeding her expectations. She happily accepts.

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“Stark and Abrupt Change” Required for Constructive Notice in FMLA Cases

Many employers ignore the multitiered notice requirements of the Family Medical Leave Act (“FMLA”) (an issue that I will discuss in a future post). Nonetheless, most employers recognize that they need to be careful when terminating any employee for excessive absences or tardies if that employee ever suggested that he may be suffering, or have suffered from, a serious medical condition. It doesn’t matter if the company has tracked the employee’s absences as FMLA absences; an employer still risks being sued for FMLA interference or retaliation if the employee had provided some notice of a serious medical condition in the past. 

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Contributors

Thomas H. Wilson

Thomas H. Wilson Partner

Christopher V. Bacon

Christopher V. Bacon Counsel

Sean Becker

Sean Becker Partner

Stephen M. Jacobson

Stephen M. Jacobson Partner

Martin C. Luff

Martin Luff Counsel

Lawrence S. Elbaum Partner

S. Grace Ho

S. Grace Ho Counsel

Jacob D. Ecker

Jacob D. Ecker Associate

Robert Sheppard

Robert Sheppard Associate