Bass Berry & Sims Labor Talk

Attorneys React To High Court’s Constructive Discharge Ruling

Posted in Discrimination and Harassment Law and Practice

Bass, Berry & Sims attorney Bob Horton provided insight to Law360 on the Supreme Court’s ruling in Green v. Brennan allowing the constructive discharge claim period to begin when an employee resigns, not when the employer commits the last allegedly discriminatory act. As Bob points out in the article,

Continue Reading

DOL Announces New Salary Level in Overtime Regulations

Posted in Wage and Hour Law and Practice

The U.S. Department of Labor (DOL) has announced a new “salary level” to the so-called white collar overtime exemptions under the Fair Labor Standards Act. In short, the new rules take effect December 1, 2016, and will more than double the salary level for those employees classified as exempt from overtime pay from the current level of $23,660 to the new level of $47,476, or $913 per week. The highly compensated executive salary level has been raised to $134,000. The new rule is expected to impact millions of employees and is expected to be especially hard on small businesses, nonprofits, many retailers, and employers in some regions of the country.

The DOL also announced that the salary level will be adjusted automatically every three years, based on the 40th percentile of the weekly earnings of full-time salaried workers in the lowest-wage Census region. Historically, the DOL has taken the position that future adjustments in salary level required new rule-making.

Continue Reading

Defend Trade Secrets Act of 2016 Signed Into Law

Posted in Retaliation/Whistleblower

On May 11, 2016, President Obama signed the Defend Trade Secrets Act (DTSA), creating a federal civil remedy for trade secrets theft, in addition to preexisting criminal penalties. This Act amends the Economic Espionage Act of 1996, which was later amended in 2012. Under these older statutes, even though both criminal and civil causes of action were available, only the U.S. Attorney General’s Office could bring those actions. The new law allows the injured party to bring a civil cause of action.

Preemption of State Law for Whistleblower Protection

Until now, trade secrets theft has largely been handled at the state level through lawsuits filed under the Uniform Trade Secrets Act that many states had passed. The DTSA does not preempt state laws in this area but rather is intended to supplement existing state law.[1] However, employers should be aware that the DTSA does create a whistleblower immunity that does preempt any conflicting state laws. This provision protects a whistleblower from any criminal or civil liability “for the disclosure of a trade secret that (A)(i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.”  This provision also allows for disclosure of trade secrets in an anti-retaliation lawsuit against an employer so long as the employee makes the disclosure only to the employee’s attorney and so long as any court filing keeps the trade secrets under seal .[2]

Continue Reading

California Employers Generally May Not Combine Required Rest Periods

Posted in California Employment Law

The California Court of Appeals recently held that California employers may not combine required 10 minute rest periods into one larger rest period absent justifiable circumstances, further clarifying the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, which had held that employers were not always required to provide a rest period before a meal break (suggesting that they may in fact be combined).

The California Legislature originally authorized the Industrial Welfare Commission (IWC) to issue wage orders governing wages, hours, and working conditions for workers in various industries and occupations.  Although the IWC has since been defunded, the wage orders still generally hold the force of law in California.  Under those wage orders, employers must provide all employees with a 10 minute paid rest period for every four hours, or major fraction thereof, worked.  If an employer fails to provide a required rest period, the employer must pay a wage penalty equivalent to one hour of pay at the employee’s regular rate of pay for each workday that the rest period was not provided. Continue Reading

DEAR Department of Energy M&O Contractors: The FAR Nondisplacement of Qualified Workers Requirements Apply To You, Too

Posted in Employment Agreements/Non-Compete Policies and Practice

The Department of Energy (DOE) has proposed an amendment to the Department of Energy Acquisition Regulation (DEAR) that, among other changes, clarifies that FAR Subpart 22.12, Nondisplacement of Qualified Workers Under Service Contracts, and the associated Department of Labor regulations, applies to subcontracts under DOE’s management and operating (M&O) contracts. M&O contractors and their subcontractors need to be aware of these changes, particularly the impact on the requirement to hire service employees working on incumbent contracts set forth in contract clause FAR 52.222-17.

FAR Subpart 22.12 implements Executive Order 13495 (January 30, 2009), and requires a successor contractor and its subcontractors to offer “service employees,” as defined by the Service Contract Act, under the predecessor contract (of the same or similar services at the same location) and whose employment will be terminated as a result of the successor contract award, a right of first refusal of employment under the new contract. Employment openings are generally prohibited until such right of refusal has been provided, meaning an incoming contractor will have limited opportunity to staff its current employees on the contract. Importantly, each bona fide express offer of employment must have a stated time limit of not less than 10 days for an employee response, a time period that successor contractors should account for when determining how long it will take to transition the contract. The contract clause, FAR 52.222-17, has to be flowed down to service subcontracts over the simplified acquisition threshold, typically $150,000. The requirements of FAR Subpart 22.12 do not apply to service contracts performed entirely outside the United States. 77 Fed. Reg. 75768 (Dec. 21, 2012).

Continue Reading

San Francisco Becomes First City to Require Employers to Fund Paid Family Leave

Posted in California Employment Law, Leaves of Absence/FMLA Law and Practice

On April 21, 2016, San Francisco became the first city to impose a mandatory paid parental leave ordinance.  Under the new law, certain covered employers must provide supplemental compensation to employees who are receiving California Paid Family Leave (PFL) for purposes of bonding with a new child.  Employers should be mindful of these new obligations, which are likely to expand to other cities and possibly the entire State of California in the future.

Under previously existing law, no California city required that employers provide paid parental leave for bonding with a new child.  Employers were only required to notify employees of their rights under the state’s PFL program.  The PFL program is a component of the California State Disability Insurance (SDI) program and entitles employees who have paid into SDI to receive up to 55% of their lost wages when they must take a leave of absence to care for a child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner.  Benefits are capped at six weeks in a 12-month period, and benefits are funded entirely by the SDI program.  (Note that California Governor Jerry Brown recently signed legislation that will increase the benefits paid by the California PFL program for eligible leaves from 55% to 60% (or 70% in some cases) beginning on or after January 1, 2018.) Continue Reading

NLRB Policy Initiatives for 2016: Employers Be Warned

Posted in Labor Board Proceedings and Practice

The General Counsel for the National Labor Relations Board (the “Board”) recently revealed the Board’s policy initiatives for 2016 in a memorandum to local regional offices.  The memo informs the NLRB regions which cases it considers to be of particular concern and requires that they be submitted to the Division of Advice at the Board’s Washington, D.C. headquarters so the General Counsel’s office may “provide a clear and consistent interpretation of the [National Labor Relations] Act” that is consistent with the General Counsel’s view.  While the memo contains few surprises, it does offer employers a cautionary warning of possible changes to current labor law jurisprudence.  Because these changes may negatively impact employers, employers would be wise to take note of its warnings.

Continue Reading

New Amendments to California Fair Employment and Housing Act Now Effective

Posted in California Employment Law, Discrimination and Harassment Law and Practice

After a lengthy period of public comment and several revisions, California’s Fair Employment and Housing Council finally adopted amendments to the California Fair Employment and Housing Act (FEHA) regulations.  The amendments, which went into effect on April 1, 2016, generally reinforce existing law but also impose several new and detailed requirements for employers.

Requirements for harassment, discrimination and retaliation policy:

As of April 1, every California employer must have a harassment, discrimination, and retaliation policy that:

  1. Is in writing;
  2. Lists all current protected categories under the California FEHA (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over 40, military and veteran status, and sexual orientation);
  3. Specifies that employees are protected from illegal conduct from any workplace source, including third parties who are in the workplace;
  4. Creates a confidential complaint process that ensures a timely response, impartial investigation by qualified personnel, documentation and tracking, appropriate remedial actions and resolutions, and timely closure;
  5. Informs employees about several different avenues (other than to a direct supervisor) for reporting a complaint and allows employees to have direct communication with a designated company representative, such as a human resources manager or other reliable company personnel;
  6. Requires supervisors to report any complaints of misconduct to a designated company representative; and
  7. Makes clear that employees will not be exposed to retaliation as a result of making a complaint or participating in any workplace investigation.

Continue Reading

California Case Law 2015 Recap

Posted in California Employment Law, Leaves of Absence/FMLA Law and Practice

A number of significant developments in California labor and employment law occurred in 2015. This article will highlight the developments we believe are most important for California employers, including a new mandatory paid sick leave law, a substantial overhaul of the Fair Pay Act, the solidification of special meal period waivers for healthcare employees, the prohibition of certain no-hire clauses in California settlement agreements, and a few others.

California Paid Sick Leave Laws

On July 1, 2015, California became the second state in the nation (following Connecticut) to implement a mandatory paid sick leave law and the first state in the nation to require paid sick leave for all employers.  Unlike Connecticut, there is no small employer carve out.

Continue Reading