Ending a more than 15-year-long legal battle, the Fifth Circuit on May 24, 2019, unanimously affirmed the dismissal of a proposed class action against subsidiaries of UBS AG, alleging violations of U.S. securities laws for their role as a broker of Enron’s employee stock option plan and for failure to disclose material information about Enron’s “financial manipulations.” Lampkin et al. v. UBS PaineWebber Inc. et al., No. 17-20608 (5th Cir. May 24, 2019). Continue Reading
Are No-Poach Agreements Becoming Extinct?
Posted in Employment Agreements, No PoachingAgreements between companies who compete for employees have always been subject to antitrust scrutiny. But recently, “no-poach” agreements—i.e. agreements to not recruit or hire another party’s employees—have become the subject of a recent flurry of government enforcement actions and private class actions.
In this article, we discuss the types of no-poach covenants that are permissible, and the possible civil and criminal risks a company faces by entering into an impermissible no-poach agreement. We also discuss various alternatives to no-poach agreements that an employer can use to protect its workforce from competitor poaching. Continue Reading
Coming Soon? Expanded Employment Protections for Victims of Sexual Harassment
In a continuing trend that began with the launch of the MeToo Movement, the California legislature recently passed Assembly Bill 171, another proposed law designed to expand safeguards for employees who have been the victims of sexual harassment. This latest measure follows California’s enactment of a new law in 2017, which, as we discussed in a previous article, requires that employers provide all new (and certain current) employees with an explanation of rights for victims of sexual assault and stalking. Continue Reading
ICE May Visit Your Company or University Campus – a Quick Checklist and Guidance
Posted in ImmigrationLately, ICE has been more active in making arrests of undocumented individuals. Statistically however, the number of arrests are very small and the “bark” is much bigger than the “bite.” Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.
Major Points
- Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.
- ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.
- Anybody arrested by ICE has the right to counsel.
- ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE activities focusing on the personal immigration issues of an individual shall not take place on company property.
- If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal. Continue Reading
The NLRB Holds That Employers May Implement Class Waivers in Response to Class Claims and Discipline Employees Who Refuse to Sign Them
Employers wishing to implement class action waivers in response to class claims and discipline employees who refuse to sign them just got some very good news from the National Labor Relations Board (NLRB or Board) in Cordua Restaurants, Inc., 368 NLRB No. 43.
By way of background, in Epic Systems Corp v. Lewis, 138 S. Ct. 1612 (2018) the SCOTUS held that agreements containing class and collective action waivers and requiring that employment disputes be resolved by individualized arbitration do NOT violate the National Labor Relations Act (NLRA or the Act) and that an employer is free to condition employment on an employee’s entry into such an agreement. Thus, according to Court, such arbitration agreements are to be enforced as written pursuant to the Federal Arbitration Act. Continue Reading
Unintended Consequences: Dynamex and California Health Care Employers
Posted in Independent ContractorsThis article originally appeared in Healthcare News on August 6, 2019.
The California Supreme Court’s 2018 landmark decision, Dynamex Operations West, Inc. v. Superior Court (Dynamex), redefines the employment relationship between entities and workers in California and creates one of the most stringent standards in the United States for classifying workers as independent contractors.
Applying the changes introduced by Dynamex can present significant complications in many industries. This is especially true for the health care industry due to California’s prohibition of corporate practice of medicine (CPOM) and its associated rules. For example, the state requires hospitals to have physicians available during all hours of hospital operation, while, at the same time, generally prohibiting hospitals from hiring physicians directly.
Due to these complexities, many California health care entities may benefit from examining the potentially sweeping impacts of this new interpretation of the law and determining near- and long-term methods for making necessary changes to their hiring and retention policies. Following is an in-depth overview of the potential implications for health care employers and how those in the health care industry will likely need to respond. Continue Reading
Breaking with Tradition, The Current NLRB is on a Rulemaking Tear: Election Procedures, Recognition Bar, and 9(a) Collective Bargaining Relationships
In its 84-year history, the National Labor Relations Board (NLRB, Board or Agency) has promulgated a very small number of rules pursuant to the Administrative Procedures Act, relying, instead, on individualized adjudications to establish the Board’s legislative policies. However, breaking with that long tradition, the current Board now appears to be on the verge of a formal rulemaking jag for on May 22, the Board released its “Unified Agenda” of anticipated regulatory actions which, in addition to proceeding with rulemaking regarding joint employer standards, announced the Board’s intention to consider formal rulemaking in a number of critical areas. Consistent with that wide-ranging Agenda, on August 12, the Board published a Notice of Proposed Rulemaking (NPRM) over the objection of Democratic appointee, Lauren McFerran, that would amend the Agency’s rules and regulations governing the filing and processing of election petitions in three very important ways. This NPRM, therefore, deserves attention. Continue Reading
Salary History Off-Limits Under New Illinois Equal Pay Law
On July 31, 2019, Governor J.B. Pritzker signed a law prohibiting Illinois employers from asking job applicants or their previous employers about salary history.
The law amends the Equal Pay Act of 2003, which made it illegal to discriminatorily pay employees on the basis of sex or race. The impetus behind the new salary history amendment is an effort to close the gender wage gap. According to a news release from the governor’s office, women in Illinois earn 79% of what men earn. Continue Reading
The NLRB Confirms that Intermittent Strikes in Furtherance of the Same Goal are Unprotected
The National Labor Relations Act’s (NLRA or Act) Section 7 grants to all employees — regardless of whether they are unionized or not — the right to engage in protected concerted activity (PCA). Accordingly, an employer may not punish or take any adverse action against a worker because they engage in PCA. Such adverse action is an unfair labor practice in violation of Section 8(a)(1) of the NLRA. Continue Reading
Predictable Scheduling Makes Its Way To Chicago
Chicago Mayor Lori Lightfoot is expected to sign into law the City Council’s recently passed Chicago Fair Workweek Ordinance (the “Ordinance”). The Ordinance, which includes predictable scheduling provisions, will dramatically affect workweek scheduling for many Chicago employers beginning on July 1, 2020.
We previously wrote about Emeryville, California’s Fair Workweek Ordinance. Emeryville became the third municipality to enact predictive scheduling legislation (Seattle and San Francisco being the others). In an effort to enact “fair and equitable employment scheduling practices”, the Chicago City Council now passed its own Ordinance, which requires certain Covered employers (as defined below) to provide Covered employees (as defined below) with at least two weeks’ advance notice of their work schedules and to compensate employees in the event of certain schedule changes. Continue Reading
