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

  • 15
  • March
  • 2018

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Mind the Gap, Part II: Act Urgently on UK Gender Pay Gap Reporting

If you haven’t acted to submit your UK employee gender pay gap report, you probably aren’t alone: media reports suggest that only 1/6 of expected businesses have filed the required report. But covered businesses should not take a “safety in numbers” approach. With time until the deadline quickly running out, and the UK’s Equality and Human Rights Commission warning that it will be “fully enforcing” against non-compliant businesses, now is the time to prepare for the 5 April 2018 deadline.

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A Gig Economy Independent Contractor Checklist — For Now

A federal judge in California recently found that a restaurant delivery driver working for Grubhub was an independent contractor rather than an employee (and thus was not entitled to minimum wage, overtime, and expense reimbursement under California law). As a first-of-its-kind decision on the merits of the independent contractor analysis in the so-called “gig” or “sharing” economy, the decision presents a fairly comprehensive analysis of the traditional independent contractor analysis in this developing context. It’s important to recognize that there may be limits to the Grubhub case’s applicability to other new-economy companies because many of the judge’s determinations were based on the plaintiff’s lack of credibility. The decision is also likely to be appealed to the Ninth Circuit, which is typically not friendly to the gig economy. 

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Local Opportunity for Education on International Matters

For those of you located in Texas, you have no doubt noticed how important international legal matters can be for Texas employers. With the significant international trade that occurs in Texas, both along its border with Mexico and from all of its ports and airports, it is important to have an understanding of different legal issues related to international business. With this goal in mind, the International Law Section of the State Bar of Texas is sponsoring its Annual Institute on April 5 and 6 in Houston. You can see details here. This is one of those rare opportunities to “travel around the world” right here in Houston.

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Conflicting Standards for "Puttin' on the Top Hat": Making Sure That Your Executives' Top Hat Plan Meets the Test

A top hat plan is a plan that provides benefits to a select group of management or highly compensated employees. Because Congress determined that a plan covering a sophisticated group of employees did not warrant the same protections as one covering the general employee population, it provided special carveouts for top hat plans under ERISA. Specifically, a top hat plan does not need to comply with ERISA’s minimum participation, vesting, funding, fiduciary responsibility or trust requirements.

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Blowing the Whistle on Inadequate Reporting Policies and Procedures

As you may have heard, the Supreme Court decided last week that Dodd-Frank’s whistleblower protections (along with its 6-year statute of limitations and direct-to-court enforcement procedure) only extend to employees who have provided information about securities law violations to the SEC. This result may give a false sense of security to some employers who may wrongly conclude they can worry less about retaliation claims. In reality, however, the decision may encourage employees to go to the SEC first in order to gain the protections of Dodd-Frank and undermine the company’s ability to deal with potential compliance issues internally. Therefore, now more than ever, companies need to make sure that they have established procedures and policies that allow employees to make such complaints internally and a culture that encourages such internal reporting.

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Criminal Antitrust Investigations Likely Underway in the Area of Employee Compensation and Hiring

In November 2016, we reported that the nation’s antitrust enforcement agencies, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission, had jointly issued Antitrust Guidance for Human Resources Professionals alerting companies and HR professionals to beware of the antitrust risk involved in hiring and compensation decisions. The Agencies warned against agreements between two or more employers to limit or fix the terms of employment; to set wages and other compensation; or to refrain from soliciting or recruiting one another’s employees (referred to as “no-poaching” agreements). The 2016 Guidance put companies and individuals on notice that, going forward, such conduct would be subject to criminal prosecution.

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"Document, Document, Document" Is Only Half the Battle

As someone who has tried dozens of employment trials — including a very recent one in which a jury found for my client — I can attest to the importance of having good documentation that corroborates the employer’s conversations with employees, especially when the employee subsequently disputes what was said. In my recent trial, for example, we were able to admit dozens of investigation reports that were made close to the time of the events and contradicted the plaintiff’s version of events. The jury was allowed to bring these documents back to the jury room with them and review them in deliberations — a very powerful tool for a jury that is otherwise relying on its collective memory in discussing evidence. Unfortunately, trial lawyers sometimes forget to tell their clients what they need to do in order to ensure that their valuable documentation will be admissible at trial.

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Who Was Sergei Magnitsky and Why Should You Care?

Sergei Magnitsky was a Russian accountant who had the audacity to claim that large-scale  theft from the Russian government was carried out by Russian officials. Shortly after making these allegations, he was arrested and spent a year in prison in Russia without being charged for any crime. Ultimately, Magnitsky died in prison of various health ailments. An investigation authored by the Kremlin itself found that he had been given inadequate medical care and was assaulted shortly before his death. 

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The OFCCP Is Coming, The OFCCP Is Coming! Federal Contractors Put on Notice of Coming Audits

If your company is one of the 1,000 federal contractor establishments (including prime contractors and subcontractors) that received a corporate scheduling announcement letter (a “CSAL”) from the Office of Federal Contract Compliance Programs (the “OFCCP”), you probably already know that, as a federal contractor, your company has many employment obligations beyond those applicable to employers in general. You should also be aware that the OFCCP, in sending these CSALs — which it is not required to do — is actually giving companies some extra time to make sure their practices are up to snuff. While not every company who has received CSALs will end up being audited, these letters provide companies a golden opportunity to review and, if necessary, correct their practices before the OFCCP comes knocking.

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  • 08
  • February
  • 2018

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The Family Medical Leave Act Turns 25 Years Old

The Family Medical Leave Act (the “FMLA”) turned 25 this week, on February 5, 2018. Enacted in 1993, the FMLA is actually one of the youngest federal employment laws on the books. As with most other individual protections enshrined in federal law, the FMLA — which generally allows 12 weeks of unpaid, job-protected leave to care for newborns and ill family members or to deal with a worker’s own serious illness — sets a floor, not a ceiling, for workplace leave. Over the past several years, some states and many cities have taken this principle seriously and enacted more stringent requirements for employee leave. Many employers also provide paid, as opposed to unpaid, leave in some form or another to their employees, often viewing that benefit as good for business and attractive to potential recruits.

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  • 06
  • February
  • 2018

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What Do You Mean Someone I've Never Met Is My Employee?

While the current National Labor Relations Board appears to be heading in the right direction when it comes to the joint employer and independent contractor issues, it is important to remember that federal courts may still find employers to be “joint employers.” This point was recently brought home in a decision by the United States District Court for the Southern District of West Virginia, decided on January 3, in the case of Young v. Act Fast Delivery of West Virginia, et al.

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Pay Ratio Implementation: Recent Guidance and Practical Steps

The 2018 proxy season will be the first time many companies are required to comply with the SEC’s pay ratio disclosure rule, which was adopted by the Commission in 2015 pursuant to the Dodd-Frank Act. The pay ratio disclosure rule requires companies to disclose the annual total compensation of the median employee, the CEO, and the ratio of those two amounts, as well as certain estimates and assumptions used in determining the median employee and calculating annual total compensation.

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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

Robert Sheppard

Robert Sheppard Associate