Practice/Industry Group Overview
Ogletree Deakins provides clients with innovative and business-oriented solutions to compliance issues across every facet of labor and employment law. Our lawyers work with clients to design effective compliance measures, assist in audits and investigations, and defend clients in relation to compliance as well as retaliation claims.
The rapid expansion of additional legislation and regulation related to employee anti-retaliation protections, especially for whistleblowing activities across a number of industries, requires that clients be able to access immediately lawyers with very specific and sophisticated knowledge and experience in counseling, investigating, and litigating under these laws.
Ogletree Deakins’ Ethics Compliance, Investigations and Whistleblower Response Practice Group works with clients in handling compliance issues, investigations, and other matters arising under the panoply of laws related to whistleblower activities, including the following: False Claims Act; Sarbanes-Oxley Act; Consumer Financial Protection Improvement Act; Dodd-Frank Wall Street Reform and Consumer Protection Act; Energy Reorganization Act; Occupational Safety and Health Act; Mine Safety and Health Act; Wendell H. Ford Aviation and Reform Act for the 21st Century; Pipeline Safety Improvement Act; Surface Transportation Assistance Act; Toxic Substances Control Act; Solid Waste Disposal Act; Federal Water Pollution Control Act; and Clean Air Act.
Experience and Proactive Assistance
Our lawyers have deep experience representing clients in whistleblower matters. This includes the representation of clients in False Claims Act whistleblower retaliation and qui tam cases; Sarbanes-Oxley investigations and litigation; Dodd-Frank investigations; Occupational Safety and Health Act retaliation investigations and litigation; and investigations and litigation under other industry-specific anti-retaliation laws.
We are able to assist clients in connection with:
- Policy design and review
- Procedure design and review
- Document retention design and review
- Internal investigations
- Agency representation
- Litigation and appeals
Effective Handling of Sensitive Matters
Our lawyers work with our clients directly, as well as with corporate compliance counsel and appropriate subject matter experts, to ensure compliance, thorough and responsible investigations, and vigorous and effective defense of claims related to these laws. We work with clients to solve highly-sensitive situations involving key executives and assist clients in managing comprehensive workplace crises. Our excellent working relationships and track record of credibility with investigative and enforcement agencies work to our clients’ benefit in these sensitive and high-profile matters of central concern to their businesses.
In addition, our lawyers are mindful that every whistleblower complaint carries the risk of a subsequent retaliation claim. Accordingly, our practice group lawyers can assist our clients in developing best practices for responding to the challenges of managing a whistleblowing investigation to manage that risk successfully and assist our clients in following those practices in real time.
Articles Authored by Lawyers at this office:
New Jersey Appellate Court Rules Arbitration Agreement in Employee Handbook Unenforceable
Robin Koshy,Steven J. Luckner,Evan J. Shenkman, January 18, 2016
In C.M. v. Maiden Re Insurance Services, LLC, No. L-3622-13 (App. Div. Sept. 18, 2015), the New Jersey Appellate Division held that an employee was not compelled to arbitrate her employment discrimination claims, notwithstanding her confirmed receipt of a handbook containing an arbitration...
Pay Transparency Rule to Go Into Effect on Same Day as OFCCP’s Webinar
Hera S. Arsen,Leigh M. Nason, January 18, 2016
On Monday, January 11, the Office of Federal Contract Compliance Programs’ (OFCCP) final rule on pay transparency, which prohibits federal contractors from discriminating against employees and applicants “who inquire about, discuss, or disclose their own compensation or the compensation...
New Brunswick New Jersey’s Paid Sick & Safe Leave Law Goes Into Effect
Robin Koshy,Steven J. Luckner,Evan J. Shenkman, January 15, 2016
On December 17, 2015, the City of New Brunswick passed its own paid sick leave ordinance, making it the eleventh municipality in the State of New Jersey to require paid sick leave. The ordinance becomes effective on January 6, 2016, but employees must wait until May 5, 2016 (or 120 days after they...
A New Year’s Resolution for California Employers: Fair Pay Act Compliance
Hera S. Arsen,Christopher W. Olmsted, January 11, 2016
California employers are preparing for the effects the Fair Pay Act—the new law signed by Governor Brown last October that significantly changes California’s gender equality pay law. Senate Bill 358 (SB 358), which went into effect on January 1, 2016, requires employers to pay employees...
How Federal Preemption Affects Local and State Labor Peace Agreements
David F. Loeffler, January 11, 2016
Unions have been largely unsuccessful in their efforts to organize employees and negotiate first contracts within the system created by the National Labor Relations Act (NLRA). Only about 7 percent of the private-sector labor force is unionized. Consequently, unions have adopted new organizing...
DHS Issues Proposed Rule for Changes to Employment of High-Skilled Foreign Workers
Jacob D. Cherry, January 08, 2016
On December 30, 2015, the U.S. Department of Homeland Security (DHS) released a notice of proposed rulemaking (NPRM) concerning employment-based visa programs for high-skilled workers. The notice is published in the December 31, 2015 Federal Register and is subject to a 60-day comment period ending...
New Jersey Annual Notice Reminders With Deadlines Fast Approaching
Mark Diana,Steven J. Luckner,Jocelyn A. Merced,Evan J. Shenkman, January 07, 2016
New Jersey employers should be aware of two impending annual notice requirements. First, employers must distribute to each employee working in New Jersey a written copy of the Gender Equity Notice on or before December 31 each year and must obtain a signed acknowledgement from each employee in...
Philadelphia Goes Beyond Ban the Box
Jacqueline R. Barrett,Julie Donahue,Emily K. O'Brian, January 07, 2016
On December 15, 2015, Mayor Michael Nutter signed a bill amending Philadelphia’s “ban the box” law, formally titled the Fair Criminal Records Screening Standards Ordinance, which was enacted in 2011. With these amendments, Philadelphia’s ordinance joins New York City’s...
Revised “Persuader” Reporting Requirements Are Back
Harold P. Coxson, January 07, 2016
Don't look now, but the U.S. Department of Labor’s latest Fall 2015 Semiannual Regulatory Agenda advances the controversial proposed revisions to the "persuader activity" reporting requirements under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). Final regulatory...
Elizabeth Becomes the Tenth New Jersey City to Require Paid Sick Leave
Mark Diana,Steven J. Luckner,Jocelyn A. Merced,Evan J. Shenkman, January 04, 2016
On November 3, 2015, voters in the City of Elizabeth approved a paid sick leave ordinance, making it the tenth municipality in the State of New Jersey to require paid sick leave. The ordinance, which goes into effect on March 2, 2016 (120 days after voter approval) is nearly identical to sick leave...
Mexico Increases the Minimum Wage Effective January 1, 2016
Pietro Straulino-Rodriguez, January 04, 2016
On December 11, 2015, the Council of Representatives of the National Minimum Wage Commission, pursuant to a vote to determine the minimum wage held every year, unanimously decided to increase the daily minimum wage by 4.2 percent in 2016.
New Jersey Advances Bill to Ban Most Employee Credit Checks
Mark Diana,Steven J. Luckner,Jocelyn A. Merced,Evan J. Shenkman, January 04, 2016
On December 14, 2015, the New Jersey Assembly Labor Committee released another bill-A2298-seeking to prohibit most credit checks on employees. Essentially the same as prior bills that failed in the New Jersey legislature (including those we reported on in 2010 and in 2012), A2298 would prohibit...
BOLI Issues Guidance on New Oregon Statewide Sick Leave Law
James M. Barrett, December 16, 2015
The Oregon Bureau of Labor and Industries (BOLI) has issued additional guidance on complying with the new Oregon statewide mandatory paid sick leave law, Senate Bill 454, OL 2015, Ch. 537, which takes effect on January 1, 2016.
Do I or Don't I?—Alcoholism and Accommodations in the Workplace
Lara C. de Leon, December 16, 2015
Any college football fan can attest that this has been quite the year for upsets. As interesting as the on-field action has been, we have seen increasing media attention and fan commentary focused on the action off the field—especially on the activities of college football coaches and players.
Hillsborough County, Florida Passes Wage Theft Ordinance
Edmund J. McKenna, December 16, 2015
On October 21, 2015, the Hillsborough County Board of Commissioners enacted the “Hillsborough County Wage Recovery Ordinance.” By it terms, the ordinance applies to all employers within Hillsborough County and any company with an employee or independent contractor who performs work...
New Pinellas County Wage Theft Ordinance Goes Into Effect January 1
Edmund J. McKenna, December 16, 2015
The commissioners of Pinellas County recently adopted a wage theft ordinance that will become effective on January 1, 2016. The ordinance provides that if any employer fails to pay wages of at least $60 due to an employee 14 days or more from the date the work was performed, the failure to pay will...
New Regulatory Agenda Contains Surprises
Harold P. Coxson, December 16, 2015
The U.S. Department of Labor’s (DOL) just-released Fall 2015 Semiannual Regulatory Agenda and Plan Statement contains several surprises for federal labor and employment rulemaking. Although the timetables are often aspirational and not met, the announced agency goals for regulatory actions...
Overview and Guidance on Final Joint Standards on Diversity and Inclusion
Nonnie L. Shivers, December 16, 2015
On June 9, 2015, several federal agencies jointly issued a policy statement on standards that companies could use to assess their diversity policies and practices, particularly for entities regulated by more than one agency. The Federal Reserve Board, Bureau of Consumer Financial Protection,...
Texas Supreme Court Vindicates Employer That Uniformly Enforced its Leave Policy
Tiffany L. Cox, December 16, 2015
On December 4, 2015, the Texas Supreme Court vacated a jury verdict in favor of a former employee who had alleged workers’ compensation retaliation, rendering judgment in favor of the employer and finding that the employee had not presented evidence that his termination had resulted from...
The Minimum Wage Battle Is Heating Up and Retail Is Fighting Back
Diane M. Saunders, December 16, 2015
Over the past two years, we have seen minimum wage hikes in states and cities (such as St. Louis, Kansas City, Los Angeles, and Emeryville) across the country as labor groups push for a universal $15 per hour minimum wage. With the presidential elections coming, organized labor is reinvigorating...
CDLE’s Official Guidance on Use-It-Or-Lose-It Vacation Policies: Still Prohibited
Steven R. Reid,Austin E. Smith,Roger G. Trim, December 15, 2015
The use of so-called “use-it-or-lose-it” vacation pay policies is receiving significant attention in Colorado, both from the Colorado Department of Labor and Employment (CDLE) and from employers trying to make sense of the CDLE’s recent announcements. A typical use-it-or-lose-it...
Final New Jersey Ban-the-Box Regulations Issued Today, Effective Immediately
Mark Diana,Evan J. Shenkman, December 10, 2015
The New Jersey Department of Labor and Workforce Development (NJDOL) published its long awaited, final “ban-the-box” regulations today, which take effect immediately. The final regulations, and the NJDOL’s comments to the regulations, clarify the following issues regarding New...
“Deaf Culture” Expert to Testify at Trial? Judge Allows EEOC to Test the Limits
James M. Paul, December 09, 2015
In the last couple of years, pursuant to the Americans with Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission (EEOC) has prosecuted at least 12 lawsuits on behalf of deaf or hard-of-hearing employees or job applicants. And, within the last 10 years, the U.S. Department of...
Is an Offshore Rig a Single Site of Employment Under WARN?
Jessica M. Knapp,Christopher E. Moore, December 09, 2015
A federal judge in the Eastern District of Louisiana recently issued an important ruling for oil field employers conducting layoffs. In Voisin v. Axxis Drilling, Inc. (October 21, 2015), the court held that for the purposes of the Worker Adjustment and Retraining Notification Act of 1988 (WARN...
Portland’s New Ban-the-Box Ordinance Imposes Stricter Rules Than State Law
Leah C. Lively,Kathryn P. Roberts, December 09, 2015
On November 25, 2015, the Portland City Council passed an ordinance restricting an employer’s ability to inquire regarding a job applicant’s criminal history. As of July 1, 2016, Portland employers with six or more employees will be prohibited from soliciting information regarding an...
Pennsylvania Still Requires Separate Consideration for Restrictive Covenant Agreements
Donald D. Gamburg,L. Evan Van Gorder, November 27, 2015
In a much anticipated decision released on November 18, 2015, the Supreme Court of Pennsylvania closed the door—if it was ever open—on any arguments doing away with the separate consideration required for restrictive covenant agreements entered into after the commencement of employment....
Predictive Scheduling: A Primer for Retail and Hospitality Employers
Diane M. Saunders, November 27, 2015
One of the most closely watched issues today among retail and hospitality employers is “predictive scheduling,” or as opponents call it, “restrictive scheduling.” Predictive scheduling has become the new cause célèbre among labor activists around the country...
Texas’ Open Carry Law: 3 Steps Hotels Should Take Before the New Year
John G. Harrison, November 26, 2015
The Texas statute allowing the open carrying of guns by licensed holders will become effective on January 1, 2016. Prior to this effective date, Texas hotel properties should consider following these three steps in an effort to comply with the law.
Everything You Need to Know About New York's New FCA Guidance
Gustavo A. Suárez,Aaron Warshaw,Stephen R. Woods, November 24, 2015
As we previously reported, New York City’s Fair Chance Act (FCA) went into effect on October 27, 2015. On November 5, 2015, the New York City Commission on Human Rights (NYCCHR or Commission) issued long-anticipated guidance on the FCA. Although the Commission’s website indicates that...
The Push for Pay Transparency and Equity
Kiosha Hammond Dickey, November 24, 2015
On September 10, 2015, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published its final rule on pay transparency, setting a trend for states to enact legislation aimed at strengthening fair pay, pay transparency, and other legal protections in the...
An Easing of Brazil’s Restrictive Labor Laws? Only Time Will Tell
Carolyn Ann Knox, November 18, 2015
Brazil’s troubled economy has been making global headlines for the past few months. After five years of growth, understood now to have largely been fueled by China’s seemingly insatiable hunger for commodities, the economy has ground to a halt and is declining to negative growth for...
New ACA Reporting: Frequently Asked Questions About Form 1095-C
Stephanie Alden Smithey,Timothy G. Verrall, November 18, 2015
For many employers, the employer mandate under the Affordable Care Act (ACA) is already a reality. Having now worked out some of the administrative kinks associated with providing the health plan coverage required by the mandate, employers face a new and daunting challenge: detailed reporting to...
Here To Organize”— NLRB now Accepts E-Signatures on Authorization Cards
Timothy C. Kamin, November 17, 2015
The National Labor Relations Board (NLRB) has made union organizing by email and social media a reality. The NLRB’s General Counsel issued Memorandum 15-08 on September 1, 2015, stating that, “[e]ffective immediately, parties may submit electronic signatures in support of a showing of...
Transgender Issues in the Workplace: Navigating a Changing Legal Landscape
Kelly S. Hughes,Nonnie L. Shivers, November 17, 2015
Legislation prohibiting discrimination on the basis of gender identity is popping up all around the country. From California’s Senate Bill 703 prohibiting state agencies from entering into certain contracts with contractors that discriminate between employees on the basis of gender identity...
New York’s Wage Deduction Law in Effect for Three More Years
Brian Jeffrey Gershengorn,Sonu Ray, November 13, 2015
On October 26, 2015, New York Governor Andrew Cuomo signed State Assembly bill A07594, extending the expiration period of 2012 amendments to New York Labor Law §193, which had permitted employers to make deductions from employee wages in circumstances otherwise deemed impermissible by the New...
Is Your Workplace Violence Plan Ready? 5 Essential Elements of a Comprehensive Plan
Dennis A. Davis,Luther Wright, November 10, 2015
According to the U.S. Department of Justice, one out of every six violent crimes occurs in the workplace. These crimes include assaults, rapes, robberies, and-on rare occasions-homicides. Employees, customers, and third-party individuals are increasingly acting out in ways that devastatingly alter...
Per Diems and the Regular Rate of Pay: What to Know for Your Overtime Calculation
Andrew P. Burnside,Jacob C. Credeur, November 10, 2015
The United States District Court for the Northern District of Oklahoma in Sharp v. CGG Land (U.S.) Inc., No. 14-cv-0614 (October 19, 2015), recently ruled in favor of an employer that had excluded per diem payments from a regular rate calculation under the Fair Labor Standards Act (FLSA). The...
D.C. Commuter Benefits Are Almost Here: Employers Must Comply by January 1
Vicki M. Nielsen, November 09, 2015
Employers with 20 or more employees working in the District of Columbia have fewer than 90 days to comply with a new law that requires them to offer commuter benefits to employees by January 1, 2016. Washington, D.C. is one of several cities and regions that have recently passed mandatory commuter...
California Court Deems Truck Drivers Employees, Not Independent Contractors
Christopher W. Olmsted, November 02, 2015
Companies that classify workers as independent contractors are facing increasing scrutiny in court and before administrative agencies. A recent unpublished California Court of Appeal decision in a case titled Garcia v. Seacon Logix, Inc. highlights the factors considered by a court in determining...
New York Expands Discrimination Protections Against Workplace Gender Bias
Michael R. Marra,A. Sonu Ray, November 02, 2015
On October 21, 2015, New York Governor Andrew Cuomo signed into law a number of bills, which cumulatively expand protections against gender discrimination, sexual harassment, domestic violence, and human trafficking. This comprehensive legislation, which grew out of the governor’s call for a...
NLRB Makes a Mess of the Burns Successorship Analysis and Worker Retention Laws
Seth D. Kaufman, October 29, 2015
New York City’s Displaced Building Service Workers Protection Act (DBSWPA) is one of numerous local worker retention laws, which apply to various industries in jurisdictions across the country, such as Los Angeles, San Francisco, Providence, Rhode Island, Washington D.C., and Philadelphia....
Can a Prevailing Plaintiff Recover Expert Fees? The Second Circuit Says “No”
A. Sonu Ray, October 28, 2015
The Second Circuit Court of Appeals recently ruled that expert witness fees are not recoverable under the Fair Labor Standards Act (FLSA). In Gortat v. Capala Brothers, Inc., No. 14-3304-cv (July 29, 2015), the Second Circuit ruled in a class action case filed by five former employees who sought...
St. Louis Minimum Wage Hike Struck Down at the 11th Hour
Joseph Charron,William M. Lawson,Robert W. Stewart, October 26, 2015
Hours before a St. Louis ordinance increasing the city’s minimum wage was set to take effect, St. Louis Circuit Court Judge Steven Ohmer struck down the ordinance. The ordinance, which was passed on August 28, with an effective date of October 15, would have increased the city’s minimum...
Top 10 Workplace Investigation Mistakes: Part II
Patricia Chavarria Perez, October 26, 2015
In part one of this two-part series, we covered five of the most common mistakes that employers make while conducting workplace investigations, including poor complaint mechanisms, ignoring employee complaints, failing to adequately plan an investigation, and failing to be objective while...
DHS Proposes New STEM OPT Extension Rules
Miguel A. Manna,Caroline Tang, October 23, 2015
On October 16, 2015, the Department of Homeland Security (DHS) released a notice of proposed rulemaking (NPRM) concerning new rules for extending the Optional Practical Training (OPT) program for international students with degrees in science, technology, engineering, and mathematics (STEM). The...
Florida’s Minimum Wage Likely to Remain Unchanged on January 1, 2016
Edmund J. McKenna, October 23, 2015
On November 2, 2004, Florida voters approved a constitutional amendment that created Florida’s minimum wage. The minimum wage applies to all employees in the state covered by the federal minimum wage. Florida law requires a new minimum wage calculation on September 30 of each year, based on...
The Fallout from the Schrems Decision Continues
Simon J. McMenemy,Hendrik Muschal,Grant D. Petersen, October 23, 2015
On October 14, 2015, the data protection commissioner from the German state of Schleswig-Holstein issued a position paper declaring that the use of model contract clauses by U.S. companies and European employees’ consent to transfer their personal data to the United States are invalid. This...
Top 10 Workplace Investigation Mistakes: Part I
Patricia Chavarria Perez, October 22, 2015
Resolving conflict in the workplace is a key issue for employers. Legal requirements have continued to expand in terms of what courts expect employers to do in order to prevent and correct wrongful behavior. In response, employers have increased mechanisms through which employees can lodge...
California Governor Signs Gender Wage Equality Law
Christopher W. Olmsted, October 20, 2015
The California Fair Pay Act (FPA), a state law that codifies the principle that an employee is entitled to equal pay for equal work without regard to gender, has been amended with the passage of Senate Bill 358 (SB 358), which Governor Jerry Brown signed yesterday.
European Court of Justice Invalidates European Commission’s Safe Harbor Decision
Simon J. McMenemy,Hendrik Muschal,Grant D. Petersen, October 20, 2015
On October 6, 2015, the European Court of Justice (ECJ) issued its much-anticipated decision in Schrems v. Data Protection Commissioner, Case C-362/14. The case considered the viability of the U.S.-EU Safe Harbor Framework, which has been applied to permit U.S. companies to transfer personal data...
Everything You Need to Know About St. Louis’s Minimum Wage Law
William M. Lawson,Robert W. Stewart, October 20, 2015
On August 28, 2015, the city of St. Louis passed a law to raise its minimum wage. The minimum wage increase will start at $8.25 per hour and will increase to $11.00 per hour by 2018. Beginning on January 1, 2019, the minimum wage will increase annually on January 1 of each year on a percentage...
Mexico Supreme Court Issues Guidance on Outsourcing
Pietro Straulino-Rodriguez, October 20, 2015
The Second Chamber of the Supreme Court of Justice of the Nation in Mexico recently issued guidance establishing that outsourcing does not violate the constitutional principles of legal certainty and freedom.
OFCCP Publishes Final Rule to Promote Pay Transparency
Alec Hillbo, October 20, 2015
On September 10, 2015, the Office of Federal Contract Compliance Programs (OFCCP) published its final rule on pay transparency. The purpose of the rule is to prohibit “pay secrecy policies” to make it “possible for workers and job applicants to share information about their pay...
Is the Safe Harbor Framework Still Safe?
Simon J. McMenemy,Grant D. Petersen, October 15, 2015
On October 6, 2015, the European Court of Justice (ECJ) will issue its decision in Schrems v. Data Protection Commissioner, Case C-362/14, which may invalidate the U.S.-EU Safe Harbor Framework. The Safe Harbor Framework permits U.S. companies to transfer personal data regarding their employees and...
Is the Six-Factor Test Still Good? Eleventh Circuit Endorses Modified Intern Test
Kristy G. Offitt, October 13, 2015
A recent decision by the Eleventh Circuit Court of Appeals appears to reject the U.S. Department of Labor’s oft-recited six-factor test, which is used to determine whether interns are actually functioning as employees. In Schumann v. Collier Anesthesia, P.A., et al, No. 14-13169 (September...
Creating an Inclusive Law Firm Culture: A Strategy and a Story, Too
Michelle P. Wimes, October 06, 2015
In recent years, much has been written about the importance of creating diverse, inclusive workplaces to ensure the best possible business results. As with any other successful initiatives spearheaded by an organization, law firm inclusion requires a well thought-out strategic plan implemented by...