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

  • 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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Proper Management Might Keep Your OSHA Recordables From Losing You a Contract

Contractors know that their OSHA Incidence Rate — which is based on the number of OSHA recordable injuries and illnesses — can make a difference in whether their company is hired for a particular job. Large companies that hire many contractors will often consider the bidder’s incidence rate in awarding a contract.

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  • 29
  • March
  • 2018

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The Perils of Dragging Out a Termination Decision

In the 2009 movie Up in the Air¸ George Clooney played a human resources consultant who specialized in “termination assistance.” While conducting employee layoffs and firings for other companies, Clooney travels the country, accumulating the highest frequent flier status on American Airlines. Clooney’s character has a job because his clients are scared to handle firings themselves. Although most companies handle their own terminations, unlike Hollywood’s portrayal of “high-flying” termination consultants, the employers’ “fear factor” highlighted in the film manifests in real life by sometimes causing companies to delay giving bad news to employees.

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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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Hot Topic Getting Hotter — UK "Worker" Status Cases

We have previously written about the UK’s “worker” status, an intermediate classification between an employee and a self-employed contractor, which affords some of the benefits and protections of employment (such as minimum wage and paid vacation). This remains a hot topic for employment law in 2018, with two significant cases working their way through the UK courts.

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  • 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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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