Welcome to Employment Law This Week® - subscribe to our channel for new episodes every Monday!

This week's stories include . . .

(1) Ninth Circuit Affirms Conviction for Unauthorized Password Sharing

Our top story: The Ninth Circuit says unapproved use of a former co-worker’s password can be criminal. An ex-recruiting firm employee used a current worker's credentials to gain unauthorized access to a company database. The Ninth Circuit held that this act violated the "without authorization" prong of the Computer Fraud and Abuse Act, noting that permission for legal access must be given by a computer system’s owner. This decision could have wide-reaching implications in an area of law that has become increasingly criminalized over the past few years. Jim Flynn, from Epstein Becker Green, has more.

"The Nosal case takes the criminalization trend forward in three important ways. First, it takes the statute out of a very technical hacking basis and applies it to a very common-sense situation. .The second way it brings it forward is to really couple what's going on in the Computer Fraud and Abuse Act with what's going on in the Economic Espionage Act. And that's an important development. The Nosal case deals with both of them and shows that enforcement can be very effective. The third way that it brings forward trade secret law is to show that there is the availability of criminal relief, but all of these developments also apply on the civil side, because the statutes have civil remedies as well. I, as an attorney representing private litigants, can bring forward claims very similar to what prosecutors do."

(2) NLRB Changes Rules for Organizing Mixed Units

Unions can now organize employees of two companies together without the permission of either employer. That’s according to the NLRB, which ruled this week in Miller & Anderson that it would recognize these mixed units when they find that the companies are joint employers and share a “community of interest.” The Board’s decision overrules their 2004 Oakwood Care Center decision, which held that these mixed units would only be ordered where both employers agreed. This decision will impact many employers and is likely to increase union efforts to represent leased and temporary workers along with an employer’s own workforce.

For more on this case, click here: http://bit.ly/29VleLq

(3) Seventh Circuit Appeal Clarifies Mental Health Accommodations in the Workplace

In Felix v. Wisconsin Dept. of Transportation, the Seventh Circuit Appeals Court ruled in favor of an employer who terminated a longstanding worker with an anxiety disorder. After the employee was found in a public area rolling around on the floor, the company placed her on leave under the Family and Medical Leave Act and ordered an independent medical examination. She was ultimately fired. The worker then filed a lawsuit claiming that she was fired because of her disability. The appeals court found that an employer isn't required to ignore disruptive behavior even if it's the result of a disability, noting that the employer gave careful consideration to the incident before deciding to terminate.

(4) EU Leaders Approve Privacy Shield Deal

The “Privacy Shield” data transfer pact goes into effect: The European Commission has approved the Privacy Shield, which will allow personal data to be transferred from the EU to the United States. The previous Safe Harbor framework was ruled invalid in 2015 by the European Court of Justice, leaving US companies operating internationally in legal limbo. The new framework tightens restrictions and imposes stronger obligations on US companies to protect the data of Europeans.

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Welcome to Employment Law This Week! Subscribe to our channel for new episodes every Monday!

This week's stories include . . .

(1) EEOC Calls for Increased Harassment Prevention
Our top story: The Equal Employment Opportunity Commission (EEOC) urges increased harassment prevention measures in the workplace. About one third of charges filed with the agency in 2015 involved claims of some form of harassment. The agency recommends that employers update their worker training to focus on bystander intervention and workplace civility. In addition, employers should increase their own awareness of risk factors. These include physical isolation of workers and significant power disparities. Bill Milani, from Epstein Becker Green, has more:

"The report suggests employers should take a number of actions concerning harassment in the workplace. First, an audit of organizational risk factors as outlined by EEOC. ... Second, a review of your policies against discrimination and harassment to ensure that they are current, they reference all of the protected classes, not just sexual harassment, but harassment based on race, color, religion, ethnicity. Training. Training is vital. Training for all employees on anti-harassment. ... On top of the training that all employees received, managers trained to understand their heightened responsibilities as the employer, managers trained to understand their role in the complaint procedure. And finally, crucial that leadership embrace and be accountable for issues of workplace conduct."

(2) SEC Chairman Pushes Board Diversity Disclosure
The Securities and Exchange Commission (SEC) calls for board diversity disclosure. SEC Chairwoman Mary Jo White is advocating a new regulation requiring companies to disclose information about the racial and gender diversity of their boards. White contends that existing disclosures do not provide investors with enough information and pointed out that female directors comprise just 20 percent of Fortune 500 companies. The timeline for issuing the proposed regulation has not yet been announced.

(3) Chicago City Council Approves Paid Sick Leave
Employers in the city of Chicago will soon be required to offer up to 40 hours of paid sick leave a year. The City Council unanimously approved the paid sick leave ordinance, which will apply to all individuals and businesses with at least one employee. Chicago will now join more than two dozen other U.S. cities that require employers to provide paid sick leave. The mayor is expected to sign the ordinance, which is scheduled to go into effect July 1, 2017.

For more on this story, click here: http://bit.ly/2a2yLzz

(4) NJ Justices Extend Reach of Law Against Discrimination
The New Jersey Supreme Court extends the state’s Law Against Discrimination. A medical response services company fired an employee who was going through a marital separation with a coworker. The termination was based on a supervisor’s assumption that it would likely lead to an "ugly divorce." The Court ruled that the marital status protection in the New Jersey Law Against Discrimination applies in this case, effectively expanding the law to include protections for separated, divorced, and widowed employees.

(5) Tip of the Week
Diane DiResta, Founder and CEO of DiResta Communications, shares some advice for in-house counsel on how to be more media savvy:

"Today more than ever before, everybody needs broadcasting skills, even if you’re in-house counsel. Maybe you’re never talking to the national media, but you will be interviewed at a conference, and it may be over telepresence or live stream. So it’s really important that people have media and broadcasting skills. ... The first thing you need to know is, what is your message? Create message points for yourself and always remember the rule of three. Three is that magical number. People remember things in threes. So have three distinct messages. The second thing to be aware of is you need to keep it simple. ... The way you do that is to create sound bites. A sound bite is a quotable quote. It’s a sentence or two that can easily be lifted. ... The third thing is to stay on message. And what I mean by that is that it’s easy to go off in another direction, so use the skill of bridging. What bridging is, is you answer the reporter or interviewer’s question, and then you always bridge back to your message. ...Those messages are your home base. And that’s how you succeed in a media interview."

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Welcome to Employment Law This Week! Subscribe to our channel for new episodes every Monday!

This week's stories include . . .

(1) NJ Supreme Court Voids Filing Deadline
Our top story: The New Jersey Supreme Court voids a time limit on discrimination claims. A furniture store employee filed a discrimination claim nine months after he was fired, alleging he was terminated in retaliation for filing a worker’s comp claim. While the state of New Jersey has a two-year time limit for filing claims under the Law Against Discrimination, the worker had signed a job application with the company that imposed a six-month time limit. In a landmark decision, the New Jersey Supreme Court reversed appellate and trial decisions in this case, ruling that the contract violates public policy. Carmine Iannaccone, from Epstein Becker Green, tells us how this ruling could impact the way that employers use their job applications:

"Employers really use employment applications for a lot of reasons, in addition to finding out background and experience and making employment decisions. They do use the application to remind the employee about the at-will employment status. They use it to obtain commitments to arbitrate, and if, as the court said, employment applications are, by definition, contracts of adhesion, it may be that employers are going to have to look carefully at their employment applications and maybe separate out arbitration commitments and other agreements that the employee makes in signing the employment application, because the court believes that there isn’t meaningful bargaining and the employee really isn’t in a position to agree to things in the employment application process."

(2) EEOC Releases Sample Employee Wellness Notice
As part of its final rule on wellness programs, the U.S. Equal Employment Opportunity Commission (EEOC) stipulated that employers that ask employees medical questions as part of a wellness program must post a notice to participants. The agency recently issued a sample notice for employers to use as a guide, providing much-needed clarification on the issue. According to the sample, the notice must clearly explain what information will be collected, how it will be used, who will have access to the information, and how it will be kept confidential.

(3) DOL Clarifies Timeline of “Persuader Rule” Enforcement
The Department of Labor (DOL) spells out the timeline for its amended “Persuader Rule.” The Office of Labor Management Services indicated that indirect persuader activities do not need to be reported if they arise from agreements entered into before July 1, 2016. Indirect activities occur when a persuader does not directly communicate with employees. Under the amended Persuader Rule, employers and labor relations consultants, including law firms, will be required to report indirect activities. Activities arising from arrangements made by this Thursday will not need to be reported.

In related news, an injunction against this amended rule was denied last week, though a U.S. district court judge in Minnesota found that the DOL likely exceeded its authority in changing the advice exception. There are two other challenges to this amended rule currently in the courts.

For more on this story, click here: http://bit.ly/28TNDEc

Find more on the district court case here: http://bit.ly/28SWK4t

(4) First Circuit Upholds Reversal of Pin Ban
A Honda dealer's dress code banning pins violates the rights of employees under the National Labor Relations Act to wear union insignia. That’s according to the U.S. Court of Appeals for the First Circuit, which recently upheld a decision by the National Labor Relations Board (NLRB) on the matter. The Honda dealer significantly revised its handbook in 2013 after challenges from employees, but it failed to get rid of its ban on pins. The NLRB rejected the ban, and the company appealed to the First Circuit. In a split decision, the First Circuit backed the NLRB, granting its petition for enforcement. The dissenting judge argued that the majority’s decision makes it difficult for businesses to enforce dress code policies, allowing the NLRB to play “fashion police.”

(5) Tip of the Week
Vera Sullivan, Founder and President of Diversityforce LLC, shares some advice on building partnerships to achieve organizational goals.

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

The Securities and Exchange Commission (SEC) issued a whistleblower award of more than $17 million. It is the second-largest award in the history of the agency’s whistleblower program. Awards range from 10% to 30% of monetary sanctions that exceed $1 million. This award marks the end of a one-month period—from May 13 through June 9—in which five whistleblowers received more than $26 million. Victoria Sloan Lin, from Epstein Becker Green, goes into further detail.

This is an extended interview segment from Employment Law This Week (Episode 31: Week of June 20, 2016), an online series by Epstein Becker Green - http://bit.ly/1ZWOkeP

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Welcome to Employment Law This Week! Subscribe to our channel for new episodes every Monday!

This week's stories include . . .

(1) SEC Awards $17 Million to Whistleblower - http://bit.ly/1Unz9tD
Our top story: The Securities and Exchange Commission (SEC) issues a whistleblower award of more than $17 million. The SEC has issued the second-largest award in the history of the agency’s whistleblower program. Awards range from 10% to 30% of monetary sanctions that exceed $1 million. This award marks the end of a one-month period—from May 13 through June 9—in which five whistleblowers received more than $26 million. Victoria Sloan Lin, from Epstein Becker Green, has more:

"We’ve seen four large awards issued since May 13th of this year. However, we shouldn’t read too much into this. Each investigation is unique and proceeds along its own timeline. . . . These large awards have increased awareness of the whistleblower program and may incentivize individuals to come forward with information to the SEC. But that information still needs to lead to a successful enforcement action by the SEC. . . . However, the publicity should incentivize employers to increase their compliance efforts and thus decrease the number of large awards we see in the future."

(2) Fifth Circuit Upholds Union Election Rules - http://bit.ly/1rtwtQA
The U.S. Court of Appeals for the Fifth Circuit upholds the “quickie” union election rules of the National Labor Relation Board (NLRB). Last year, the NLRB implemented new rules that allow for faster union elections. The rules prevent employers from challenging union campaigns until after the elections and also require them to share employee information with unions. Employer groups have filed a number of challenges, arguing that the new rules violate employers’ free speech rights and employees’ privacy rights. In this case, the Fifth Circuit disagreed.

(3) IRS Clarifies Taxability of Wellness Program Rewards - http://bit.ly/1Qc0lg4
Cash rewards for wellness programs are taxable. The Internal Revenue Service (IRS) has released a Chief Counsel Advice memorandum addressing rewards for wellness programs. The memorandum states that, other than actual medical care, any award issued by a medical program is taxable. This would include the reimbursement of an employee’s gym membership. However, the memorandum clarifies that a product or service with minimal value (like a t-shirt) can be classified as a “de minimis” fringe benefit, which would not taxable.

(4) NLRB Scraps Rule on Mixed-Guard Unit Recognition - http://bit.ly/1sJT5hb
The NLRB reverses its mixed-guard unit recognition rule. If a union represents both security guards and other employee groups, then an employer’s decision to recognize the union is voluntary. Before this decision, employers could also withdraw their recognition if no collective bargaining agreement was reached. Now, employers must continue to recognize the union unless and until the employees vote to decertify it in an NLRB election.

For more on new barriers to decertifying unions, click here: http://bit.ly/1UdsSOZ

(5) In-House Tip of the Week - http://bit.ly/1UT2ewY
Sara Marzitelli, People Manager at Sweaty Betty USA, shares her advice on using social media in recruitment practices:

"Employers who wish to use social media in their pre-hire recruitment should always make sure that they designate a search person who is not the decision-maker in the hiring process. . . The search person should always make sure that they’re doing the social media searches at the same point in the hiring process each time. For example, if the search is always done before the candidate is interviewed, they should make sure they do that with every applicant. . . The designated search person should make sure that they’re not conveying any protected characteristics or activities to the hiring manager in the process. This will protect the employer from the applicant making claims that they used a protected characteristic or activity for a basis for not hiring the applicant. . . As with all hiring decisions, employers should make sure that they have a legitimate basis for not hiring an employee."

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.