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

  • 14
  • June
  • 2018

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Much of OSHA’s New Silica Standard Goes into Effect for Hydraulic Fracking Operations on June 23, 2018

As we discussed in previous posts (found here, here and here), after surviving legal challenges and a 9-month delay, OSHA’s new standard limiting respirable silica exposure goes into effect for all industries on June 23, 2018. As a reminder, the new standard reduces the permissible exposure limit (“PEL”) for respirable crystalline silica from 100 micrograms per cubic meter of air for general industry and 250 micrograms for the construction industry — which has been the standard for more than 40 years — to 50 micrograms per cubic meter of air for all industries.

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  • 12
  • June
  • 2018

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Reconsidering Workplace Rules That Your Lawyer Told You to Drop

Once upon a time, not so very long ago, employment lawyers like myself were warning our clients about certain policies and workplace rules that, despite being once considered common-sensical, had become potentially worrisome. Policies such as “Employees are not allowed take pictures or videos at our refinery”; “Do not disclose confidential financial data or other non-public proprietary information”; and “Employees may not make negative or disparaging comments about fellow workers” had suddenly become problematic because an employee might reasonably construe the rule to prohibit activities protected under the National Labor Relations Act.

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  • 07
  • June
  • 2018

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All Arbitration, All the Time: Court Agrees to Hear Case on Whether an Arbitration Clause Allows Class Arbitration When the Clause Is Silent on It

As we discussed in a previous post, the Supreme Court recently ruled that employers may enforce class-waiver arbitration clauses in employment agreements and require an employee to arbitrate his claims in individual, as opposed to collective, arbitration proceedings. Hot on the heels of this recent important decision, the Court agreed to hear a case from the Ninth Circuit which addresses a related issue: whether arbitration clauses that are silent about class arbitration can nevertheless be interpreted to permit class arbitration. This may not seem consequential since many companies moving forward will opt to use class action waivers in employment agreements following the Supreme Court’s recent decision, but standard arbitration clauses are often silent on class arbitration, and many of these clauses may remain in effect for years to come. As such, the Supreme Court’s decision on this issue could have substantial implications for employers that use standard arbitration clauses in employment agreements. 

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Cake Case Should Not Affect Employer Efforts to Eliminate Discrimination Against LGBT Employees

While the Supreme Court has not yet resolved the question of whether Title VII prohibits discrimination based on sexual orientation, I have previously noted in this blog that there are good legal — not to mention moral, and business, reasons — for employers to take steps to protect gay and lesbian employees and develop a culture that is welcoming to LGBT employees.

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  • 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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Responding to #MeToo Part II: When the Alleged Harasser is in Charge

Continuing our discussion of #MeToo, Grace Ho, Counsel in our Employment, Labor & OSHA practice, addresses some key points companies should consider when there are allegations of harassment involving an executive or other high-level employee. Who should conduct the investigation and how will communications be handled? Grace further discusses the importance of proactively reviewing all employment agreements so that the company has sufficient flexibility in its response to potential harassment allegations.  

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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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  • 21
  • May
  • 2018

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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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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