Bass Berry & Sims Labor Talk

Workplace Retaliation: What Is It and How to Avoid It

Posted in Retaliation/Whistleblower

The Equal Employment Opportunity Commission (EEOC) recently issued updated guidance on workplace retaliation issues. This is the first update to the workplace retaliation policy since 1998 for what has become the most commonly reported complaint among employees in all sectors of employment in the U.S.  As employers know, retaliation is taking a materially adverse action against an applicant or employee because that person engaged, or may engage, in asserting his/her rights under any of the statutes enforced by the EEOC which include: Continue Reading

Can Misclassification of Employees as Independent Contractors Constitute an Unfair Labor Practice?

Posted in Union Organizing and Collective Bargaining

In a recent Advice Memorandum (Pacific 9 Transportation, Inc. (Pac 9), dated December 18, 2015, but released August 26, 2016), the National Labor Relations Board’s (NLRB or the Board) General Counsel (the General Counsel) took the position that misclassifying employees as independent contractors and advising them that only “employees” had a right to request union representation, interfered with the employees’ rights under the National Labor Relations Act (the Act) to organize or engage in concerted activity for their mutual aid or protection. Continue Reading

Attorneys Offer Top 10 Guide Regarding DOL’s New Fiduciary Rule

Posted in Employee Benefits

Bass, Berry & Sims attorneys Doug Dahl and David Thornton authored an article for HR Professionals Magazine outlining the top 10 things every HR professional should know about the Department of Labor’s (DOL’s) new fiduciary rule. In the article, Doug and David answer the following 10 questions about the new rule: Continue Reading

Class Action Waivers in Arbitration Agreements Signed as a Condition of Employment No Longer Enforceable in California

Posted in California Employment Law, Employee Handbooks and Policies

The Ninth Circuit recently held in Morris v. Ernst & Young, LLP that employees have a substantive right to pursue work-related claims collectively, and employers may not force employees to waive this right as a condition of employment.  As a result, class action waivers in arbitration agreements signed as a condition of employment are no longer enforceable in California.

Like many employers throughout the country, Ernst & Young required that all its employees sign arbitration agreements as a condition of employment, and each agreement required that the employees promise not to join with other employees in bringing legal claims against the company.  Specifically, the agreements required that the employees pursue legal claims (1) exclusively through arbitration, and (2) only as individuals and in “separate proceedings.”  As a result, employees could not initiate concerted legal claims against the company in any forum, whether court, arbitration proceedings or elsewhere. Continue Reading

Non-Competition Agreements Under Fire: Who Should be Required to Sign?

Posted in Employment Agreements/Non-Compete Policies and Practice

Some employers require all, or most, of their employees to sign a non-competition agreement, rationalizing that even if not enforceable, at least the non-competition agreement will make the employee “think twice” before leaving, especially to a competitor.  This practice has come under attack recently as anti-competitive. Continue Reading

Increasing Pressure Toward Employer Transparency

Posted in Employee Handbooks and Policies

Recent developments show that employers face both incentives and threats from the Obama Administration designed to ensure that employees know of their right to engage in “whistleblowing” (i.e., sharing possible unlawful activity with government agencies).   Two recent examples are the federal Defend Trade Secrets Act (DTSA) and recent enforcement actions by the Securities and Exchange Commission (SEC). Continue Reading

U.S. Department of Labor (DOL) Issues New FLSA and EPPA Posters

Posted in Employee Handbooks and Policies

The U.S. Department of Labor (DOL) has updated their mandatory posters, which notify employees of their rights under the Fair Labor Standards Act (FLSA) and Employee Polygraph Protection Act (EPPA), to no longer list the civil monetary penalties that may be assessed for violations of the aforementioned Acts.  Additionally, the FSLA poster has also been updated to list material regarding the rights of nursing mothers under the FLSA, which includes information regarding lactation breaks.  The revised posters should be posted, effective August 1, 2016.  Employers should review their employment law postings and ensure that their postings reflect the information above.  Copies of the revised FLSA and EPPA posters may be downloaded directly from the DOL’s website.

San Diego Amends Recent Paid Sick Leave Law

Posted in Employee Benefits, Employee Handbooks and Policies

On August 3, 2016, the mayor of San Diego signed a new Implementing Ordinance that will provide for several changes to the city’s new paid sick leave law.  As noted in our previous post, the San Diego City Council had considered changing the law shortly after it was passed because the ordinance seemed to create conflicting obligations with the statewide mandate.  For example, while the California Healthy Workplaces, Healthy Families Act of 2014 permits capping annual sick leave accrual and allows employers to avoid carrying over sick leave from one year to the next (under the practice of providing all required hours at the beginning of each calendar year, i.e., the “upfront method”), the San Diego Ordinance did not.  The new amendments, however, address these issues and provide additional clarity for employers seeking to comply with both laws. Continue Reading

SEC Fines Public Companies for Attempting to Limit Whistleblower Incentives in Severance Agreements

Posted in Employee Handbooks and Policies, Employment Agreements/Non-Compete Policies and Practice

The Securities and Exchange Commission (SEC) recently fined BlueLinx Holdings and Health Net, Inc. for including within severance agreements a provision designed to eliminate a former employee’s right to recover whistleblower incentives.  In what is generally considered a standard provision in severance agreements, the companies’ agreements allowed for the former employees’ participation in any government investigation but required a waiver of the right to recover any incentive payments that the law provides for whistleblowers.  The SEC issued substantial fines to these companies for this waiver requirement.  The SEC explained that the whistleblower incentive is a key part of the SEC’s enforcement efforts and that any public company’s attempt to eliminate or limit that incentive violates the law. Continue Reading