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

    This week's stories include . . .

    (1) States, Businesses File Lawsuits Against Overtime Rule

    Our top story: The U.S. Department of Labor (DOL) is facing a fight over its new overtime rule. Effective December 1, the new overtime rule will raise the minimum salary threshold required for white-collar exemptions under the Fair Labor Standards Act to $913 per week, more than doubling the current threshold. But Texas and Nevada are leading 21 states in a lawsuit challenging the DOL’s updated rule, and more than 50 business groups, including the National Retail Federation and the U.S. Chamber of Commerce, have brought a separate challenge. At the same time, the U.S. House of Representatives voted to delay the effective date of the new regulation by six months. These challenges are based on concerns that the new salary threshold would mean a big increase in costs for employers and oversteps the DOL’s authority. Kristopher Reichardt, from Epstein Becker Green, has more.

    “This was obviously a coordinated effort to attack the new overtime regulations on multiple fronts. Both suits take slightly different paths to achieve the same objective. . . . The Eastern District of Texas, a conservative jurisdiction, is somewhat known for moving its docket along quickly, which is important to any challenge, since the new rules take effect in just two months, despite some congressional attempts to delay the rule until June 1 of next year. . . . Employers should absolutely continue to prepare for the overtime rule going into effect on December 1. It’s unlikely that these lawsuits would delay or stop these rules. Employers should expect that they will go into effect.”

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

    (2) Court Finds That Voluntary Wellness Program Does Not Violate the ADA

    An employer’s voluntary wellness program survives an Equal Employment Opportunity Commission (EEOC) challenge. A lighting manufacturer in Wisconsin requires an anonymous health risk assessment in order to participate in its health plan. The EEOC filed suit against the company, claiming that the program violated restrictions in the Americans with Disabilities Act (ADA). The district court found that the program did not violate the ADA. But perhaps more importantly, the court deferred to the EEOC’s regulation stating that wellness programs are not covered by the ADA’s “safe harbor” and can violate the ADA if the exams are not voluntary.

    For more information, click here: http://bit.ly/2cEILDq

    (3) Truthful Statements Protected Under NLRA, Even if Disparaging

    Technically truthful statements are protected under the National Labor Relations Act (NLRA), even if they’re disparaging. A group of DirecTV technicians were fired after appearing on a local news station discussing a new company pay incentive. The incentive was tied to convincing customers to let DirecTV use landlines to track viewing habits. A split D.C. Circuit affirmed a National Labor Relations Board ruling in favor of the employees, finding that the technicians’ comments were based in truth and thus fell under the protection of the NLRA. Therefore, the company must reinstate the technicians.

    (4) Tip of the Week

    To celebrate Global Diversity Awareness Month, we’re bringing you a diversity-focused “Tip of the Week” each episode in October. With us this week is William A. Keyes, IV, President of the Institute for Responsible Citizenship, with some advice on growing a diverse culture by demanding excellence.

    “One of the things I notice is that the brightest young African-American men are often ignored when it comes to great opportunities. Now, you probably find that surprising, but that’s been my observation. . . . So, my argument is that for a top-tier company that is saying that it’s committed to attracting top talent of color, if you're going to do that, you should really commit to it, state that commitment, and settle for nothing less. Having done that, you really take care of your retention problems, because you bring in people who are really talented. You set a high bar for them, high standards for achievement that you expect for them to meet, they do so. Not only do you retain them, but you create a culture that is attractive to other people who also want to pursue excellence.

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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.

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  2. Denise Davin, Attorney and Senior HR Executive, is here with some advice on best practices in risk management.

    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. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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

    This week's stories include . . .

    (1) Non-Solicitation Violation Leads to $6.9M in Damages

    Our top story: Former employees turned competitors in Pennsylvania are hit with $4.5 million in punitive damages. An insurance brokerage firm sued a group of employees, claiming that they violated their non-solicitation agreements by luring away employees and clients to launch a new office for a competitor. A lower court awarded the firm nearly $2.4 million in compensatory damages and $4.5 million in punitive damages because of the defendants’ outrageous conduct. On appeal, the appellate court agreed and upheld all damages. Anthony Laura, from Epstein Becker Green, has more.

    “Punitive damages were awarded in this case for what I think were several reasons. Initially, the court did sustain tort claims against these defendants, which supports an award of punitive damages. Secondly, the defendants’ conduct in this case was particularly egregious. They willfully took information from their former employer; that was the plan that they had all along. And, in fact, their first year of business was derived solely from the clients of their former employer. . . . And lastly, I think the court was annoyed with these particular defendants for having ignored his discovery rulings and orders in the case, and, in fact, having violated a preliminary injunction order that the court put in place. That’s certainly a recipe for punitive damages.”

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

    (2) No Personal Misconduct Required for SOX 304 Clawback

    Executive pay is subject to clawback regardless of fault, the U.S. Court of Appeals for the Ninth Circuit says. The Securities and Exchange Commission recently sued a former CEO and CFO, seeking to take back compensation under Section 304 of the Sarbanes-Oxley Act (SOX), after their former company restated its financial results due to accounting improprieties. The executives argued that they personally did not engage in misconduct, so their pay should not be subject to the clawback. The Ninth Circuit disagreed, finding that Section 304 applies whenever companies restate results due to misconduct. While we’ve seen similar rulings from lower courts, this is the first time a federal circuit court has taken this view.

    (3) EEOC Supports NLRB’s Joint-Employer Standard

    The Equal Employment Opportunity Commission (EEOC) voices its support for the National Labor Relations Board’s (NLRB’s) new joint-employer standard. In an amicus brief filed with the D.C. Circuit, the EEOC backed the NLRB’s new joint-employer test, which eliminates the requirement that a joint employer exercise “direct and immediate” control over employees. In its brief, the EEOC argues that its own joint-employer standard is consistent with the NLRB’s test and that the flexible nature of the test is necessary in our current economic climate.

    Click here for more information: http://bit.ly/2ctdV0u

    (4) Business Organization Sues OSHA

    The Occupational Safety and Health Administration’s (OSHA’s) new “walk around” rule is facing a legal challenge. The National Federation of Independent Business (NFIB) filed a suit against OSHA over its new rule for walk-around rights during inspections. The agency recently released guidance stating that non-union employees could designate a union representative to accompany OSHA officers during a workplace inspection. In the past, this walk-around representative was generally limited to being an employee of the workplace. The NFIB alleges that OSHA made this change to allow unions easier access to non-represented employees but failed to comply with the procedural requirements for amending federal regulations.

    (5) Tip of the Week

    Denise Davin, Attorney and Senior HR Executive, is here with some advice on best practices in risk management.


    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. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  4. The Securities and Exchange Commission (SEC) cracks down on anti-whistleblower provisions. The SEC has charged BlueLinx Holdings with violating anti-whistleblower protections in its severance agreements. The company required all exiting employees to sign an agreement waiving their rights to whistleblower payments. Without admitting or denying any wrongdoing, BlueLinx agreed to amend its severance agreements and pay $265,000 to settle with the SEC. Less than a week later, the agency settled with a health care company on similar charges, for $340,000. Since the spring of 2015, the SEC has charged four companies for discouraging whistleblower activity. Tamara Bock, from Epstein Becker Green, has more.

    Click here to find out more information: http://bit.ly/2b4RhpG

    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. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  5. Will Hansen, Senior Vice President of Retirement Policy for The ERISA Industry Committee (ERIC), is here with some advice on preparing a benefits program in advance of the U.S. Department of Labor’s overtime rule.

    “The Department of Labor’s final rule increasing the overtime exemption threshold to $47,476 will not only have an impact on the wages an employee receives, but also the benefits that they receive. In advance of these changes taking effect on December 1, it’s important for companies to review their benefit programs. First, they should determine whether there will be any increase or decrease in the overtime wages provided, as well as an increase or decrease in salaried over hourly employees. Next, they should examine the financial impact any change in their workforce will have on the company. . . . Lastly, the company should look at other benefits, such as paid sick leave or commuter transit benefits to see if there will be a change in participation which would have an impact on costs.”

    Click here, for more on ERIC: http://bit.ly/2ccCXMH


    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. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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Employment Law This Week®

Epstein Becker Green PRO

Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – will deliver the most significant stories and developments in employment, labor, and workforce management…


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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – will deliver the most significant stories and developments in employment, labor, and workforce management issues in about five minutes, each week.

Tune in each week for developments that may affect your business. Learn more at ebglaw.com/employment-law-this-week/

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