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

  • 01
  • June
  • 2018


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Can an “Applicant” Be Discriminated Against When She Hasn’t Applied for the Job?

Under the California analogue to Title VII, the California Fair Employment and Housing Act (FEHA), it is unlawful for an employer to refuse to hire someone based on their “sex,” which includes a woman’s pregnancy status. Normally, to be eligible for protections under discrimination statutes like Title VII and FEHA in the hiring context, an individual needs to have at least applied for an open position. However, one California court of appeals indicated that, at least in some situations, FEHA sex discrimination may occur even when the plaintiff never applied for a position.

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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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  • 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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The SEC Is Upping the Ante and "Whistles" Are Getting Expensive

Following the financial crisis and the discovery of Bernie Madoff’s Ponzi scheme, Congress passed the Dodd Frank Act, which expanded substantially the SEC’s whistleblower program and established the SEC’s Office of the Whistleblower. Under this new regulatory scheme, whistleblowers were eligible to receive an award of between 10 and 30 percent of the monetary sanctions collected, including any sanctions that might be levied in parallel investigations brought by other regulators including DOJ. Since 2010, the SEC has awarded whistleblowers a number of large awards, including several awards in the multi-million dollar range, the largest of which until now was for $30 million in 2014.

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  • 23
  • March
  • 2018


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Inevitable Disclosure in Texas: Are Companies Protected from Employee Movement that Threatens Their Trade Secrets?

Imagine an employee who has access to valuable information regarding how your business is run. That employee then accepts a position with a competitor in which he would perform similar job duties and in which the sensitive or proprietary information he knows about would be helpful (and probably made him a strong candidate in the first place). Moreover, it is almost certain that the sensitive or proprietary information will be revealed by virtue of that position. Even without a non-compete or confidentiality agreement, the former employer may have a claim that his former employee is violating trade-secret laws in the new job. This concept — that the employee will necessarily divulge his former employer’s confidential information in a subsequent job — is called “inevitable disclosure.”

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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

Robert Sheppard

Robert Sheppard Associate