Practice Areas & Industries: Ogletree, Deakins, Nash, Smoak & Stewart, P.C.


Ethics Compliance, Investigations and Whistleblower Response Return to Practice Areas & Industries

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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:

  • Training
  • Counseling
  • Audits
  • 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:

NYC Cares for Caregivers: New Bill Awaiting Mayor’s Signature Would Make Caregivers a Protected Class
Sonu Ray, January 18, 2016
On December 16, 2015, the New York City Council passed a bill prohibiting employers from discriminating against employees based on their actual or perceived status as a caregiver. The new law would establish caregiver status as a new protected class under the New York City Human Rights Law, and...

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...

Minimum Wage Changes to New York’s Fast Food Industry: New Hospitality Wage Order & FAQs
Seth D. Kaufman, January 11, 2016
As we previously discussed in May and July of this year, wage and hour requirements for the fast food industry in New York State are changing starting in the new year. These changes, which go into effect on December 31, 2015, result from recommendations made by the Fast Food Wage Board, which...

Worth the Wait: Will USCIS Draft Policy Guidance Bring Greater Job Portability and Career Advancement for Foreign Workers and Their Employers in 2016?
Diane M. Rish, January 11, 2016
On November 20, 2015, the United States Citizenship and Immigration Services (USCIS) released a highly anticipated draft policy memorandum for public review and comment that provides guidance to USCIS Immigration Services Officers (ISOs) on evaluating whether one job is in “the same or a...

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...

Preparing for the Upcoming Amendments to the FLSA Overtime Regulations: A Toolkit for Retail and Hospitality Employers
Diane M. Saunders,Elizabeth S. Washko, January 08, 2016
As we have previously reported, the U.S. Department of Labor’s (DOL) proposed amendments to the Fair Labor Standards Act (FLSA), specifically as to the criteria for the Part 541 “white collar” exemptions, are projected to have an enormous impact on retail and hospitality...

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...

California’s New Piece-Rate Compensation Requirements and a New Affirmative Defense Take Effect January 1, 2016
Hera S. Arsen, January 04, 2016
On October 10, 2015, California Governor Jerry Brown signed Assembly Bill 1513, which added new requirements with regard to employees who work on a piece-rate basis. The new law, which amends California Labor Code section 226.2, changes the way employers are required to pay employees paid on a...

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...

Jersey City Expands Paid Sick Leave Ordinance to Small Businesses, Increases Penalties for Noncompliance
Mark Diana,Steven J. Luckner,Jocelyn A. Merced,Evan J. Shenkman, January 04, 2016
On October 30, 2015, the Jersey City mayor approved a change to the city’s existing paid sick leave law (Ordinance 15.145), purportedly to bring the sick leave ordinance more in line with those of other New Jersey cities that have since passed their own paid sick leave ordinances. One major...

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.

For California Employers, New Year Brings New Restrictions—Along With a Few Silver Linings
Christopher W. Olmsted,Keith A. Watts, December 16, 2015
In 2015, the California legislature undoubtedly took aim at employers with piecemeal legislation covering everything from cheerleaders (who are now employees by statute) to gender-based pay differentials—the latter with what is now the nation’s most aggressive “equal pay”...

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 DOL’s Fall 2015 Regulatory Agenda: Does it Really Shed Light on the Timing for a Final Overtime Rule?
Hera S. Arsen,Alfred B. Robinson, December 16, 2015
Approximately three months after the comment period closed on the proposal from the Obama administration and U.S. Department of Labor (DOL) to revise the Part 541 overtime regulations, the DOL issued its Fall 2015 Semiannual Regulatory Agenda that includes a statement on the timing for a final...

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...

Washington Snapshot: Leadership Contests and a Push to Break Legislative Limbo in the Nation’s Capital
Harold P. Coxson, December 16, 2015
For many in the country, the term "Washington leadership" is an oxymoron, and calling someone a "Washington insider" may be an epithet rather than a compliment. The truth remains, however, that developments in Washington, D.C., especially at the federal regulatory agencies,...

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...

Louisiana Workforce Commission Finds Employers Misclassify Workers as Independent Contractors
Andrew P. Burnside,Katherine E. Pizzini, December 15, 2015
The Louisiana Workforce Commission (LWC) is on track for a second consecutive record-setting year in identifying workers misclassified by employers as independent contractors, according to a recent announcement by the LWC. In 2014, Louisiana led the nation with the LWC finding an average of 11...

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 Court Rules Religious Institutions not Exempt From all Employment-Related Claims
Lawrence D. Smith, November 27, 2015
The United States and Texas Constitutions each provide for the free exercise of religion and the separation of church and state. These constitutional prescriptions frequently bar the application of civil laws, including employment laws, to religious institutions if they require the evaluation of a...

Filing of Police Report Accusing Coworker of Stealing Deemed Protected Activity by California Court
Christopher W. Olmsted, November 26, 2015
It is generally understood that an employer may not retaliate against an employee for “whistleblowing” and alerting authorities that a business has engaged in unlawful activity. Is an employee also protected against retaliation when he or she reports a coworker to the police for...

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.

When Does Termination of the Employment Relationship Violate Public Policy? The Restatement of Employment Law Offers a New Framework
Simone R. D. Francis, November 26, 2015
In July of 2015, the American Law Institute published the first Restatement of Employment Law. The Restatement provides a new lens through which employers, employees, and courts can evaluate the common law duties affecting the employment relationship.

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...

Postcards from the R-Case Edge: Insights into Supervisory Status Issues in a Proposed Unit
Matthew J. Kelley, November 24, 2015
Since the new “ambush” election rules went into effect on April 14, 2015, there have been over 1,000 petitions for elections filed with the National Labor Relations Board (NLRB). Approximately 60 of those petitions have led to pre-election representation-(R-case) hearings to determine...

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...

California Court Rules That Employee’s Occasional Performance of Nonexempt Duties Does Not Negate Exempt Status.
Carmine Joseph Pearl, November 18, 2015
In an unpublished opinion, Abarca v. JK Residential Services, Inc.., No. B256488 (June 26, 2015), the California Court of Appeal, Second Appellate District, recently affirmed a trial court order rejecting a residential property manager’s misclassification and overtime claims.

Coffee and Tipping Do Not Mix: Fifth Circuit Rejects Behind-the-Scenes Baristas’ Tip Pooling Arrangement
Mark A. McNitzky, November 18, 2015
In Montano v. Montrose Restaurant Associates., Inc., 800 F.3d 186 (5th Cir. Aug. 28, 2015), the Fifth Circuit Court of Appeals reversed and remanded a decision of the Southern District of Texas in which the trial court had granted summary judgment in favor of a restaurant. The issue was whether it...

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...

“Click 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...

Labor Provisions of the Just-Released Trans-Pacific Partnership (TPP) Trade Agreement
Harold P. Coxson, November 13, 2015
This morning, the Obama administration released the text of the Trans-Pacific Partnership (TPP) trade agreement, setting up a bitter debate over its provisions next year. Foremost among the opponents of TPP, organized labor will closely review TPP’s “Chapter 19 ¿ Labour.”...

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...

Consent Decree Sheds Light on the EEOC’s Interpretation of its Background Check Guidance
James R. Silvers, November 10, 2015
On September 8, 2015, BMW Manufacturing Co., LLC and the U.S. Equal Employment Opportunity Commission (EEOC) entered into a consent decree ending the EEOC’s disparate impact lawsuit over BMW’s use of criminal background checks in employment. The consent decree requires BMW to pay $1.6...

Illinois Court Leaves Former Employer Without Remedy After Invalidating Its Overly Broad Restrictive Covenants
Carol A. Poplawski, November 10, 2015
Just days before Halloween, the Illinois Appellate Court sent a scary message to employers: We will not enforce or judicially modify your overly broad restrictive covenants! In AssuredPartners, Inc. v. Schmitt, No. 13 CH 19264 (October 26, 2015), the Illinois Appellate Court affirmed a circuit...

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...

Trial Court’s Dismissal of Sexual-Orientation Discrimination Claim Was Proper Says Divided Missouri Court of Appeals
Andrew L. Metcalf,Eric A. Todd, November 09, 2015
In Pittman v. Cook Paper Recycling Corp., WD 77973 (Mo. App. W.D. Oct. 27, 2015) a divided panel of the Missouri Court of Appeals for the Western District affirmed the dismissal of an employee’s claim of discrimination based on sexual orientation under the Missouri Human Rights Act (MHRA)....

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 City Issues Fair Chance Act Notice Form for Criminal Background Checks
Gustavo A. Suarez,Aaron Warshaw,Stephen R. Woods, November 02, 2015
As we previously reported in July and June, New York City recently passed the Fair Chance Act (FCA), which becomes effective on Tuesday, October 27, 2015, and is applicable to criminal background checks.

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...

New York State Department of Labor Publishes Revised Proposed Regulations Governing Use of Payroll Debit Cards
Stephanie L. Aranyos,A. Sonu Ray, November 02, 2015
On October 28, 2015, the New York State Department of Labor (NYSDOL) published revised proposed regulations modifying its draft regulations (which were initially published on May 27, 2015) governing permissible methods of wage payment, including the use of payroll debit cards (also referred to as...

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...

Update on STEM OPT Work Permit Extension: Administrative Process for Regulation Is Underway
Ashley Karen Kerr,Bernhard Mueller, October 26, 2015
In response to Judge Ellen Segal Huvelle’s ruling in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015) that vacated the previous regulations on STEM Optional Practical Training (OPT) work permit extension, on October 2,...