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

    1. New York Passes New Sexual Harassment Legislation

    Our top story: New York says #MeToo. As part of its budget package, the New York State legislature passed new regulations concerning sexual harassment in the workplace. The bill prohibits employers from requiring pre-dispute arbitration agreements for sexual harassment cases and from subjecting sexual harassment settlements to non-disclosure agreements. Employers will be required to have a written sexual harassment policy and annual training for all employees. The legislation also expands protections to independent contractors, among other provisions. Jennifer Gefsky, from Epstein Becker Green, has more:

    “The idea that employers can no longer arbitrate or require the mandatory arbitration of sexual harassment claims is going to be a big change in the future. Many employers in New York State have just regular arbitration provisions in employee contracts, and that is going to have to be amended going forward. And second, [regarding] sexual harassment settlements ... it's going to be more difficult to keep those confidential. I think it's going to provide a great incentive for employers to do everything that they can to prevent sexual harassment in the workplace, which is really the goal of the legislation. New York legislation is very much on par with what other states are doing in reaction to the #MeToo movement, but still is at the forefront of new legislation that's being passed. So I see other states in the future definitely looking to the New York law as a guideline for what they should do in their own states.”

    2. DC Circuit to Hear Browning-Ferris Appeal Again

    The standard for determining joint-employer status under the National Labor Relations Act remains in flux: The National Labor Relations Board’s decision to vacate their Hy-Brand ruling has now put the Browning-Ferris Industries case back in the DC Circuit. The controversial 2014 Browning-Ferris decision broadened the definition of joint employer. Just last month, the DC Circuit remanded the case back to the NLRB because Hy-Brand overruled the Browning-Ferris standard. When Hy-Brand was vacated, the Court agreed to take the case back, stating that it was "appropriate only because this case presents 'extraordinary circumstances.’” Stay tuned!

    3. First DTSA Whistleblower Immunity Granted

    The Eastern District of Pennsylvania appears to be the first court to grant immunity under the whistleblower provision of the Defend Trade Secrets Act (“DTSA”). The court has dismissed a trade secrets misappropriation charge based on the DTSA’s whistleblower protections. The plaintiff brought a discrimination suit against her former employer. The employer filed the misappropriation counterclaim after its lawyers received the company’s own confidential information from the plaintiff’s attorney in discovery. The court dismissed that claim based on the DTSA whistleblower immunity provision finding that providing otherwise confidential information to an attorney in a litigation was a protected act under the law.

    4. Ninth Circuit: Salary History Does Not Justify Wage Gaps

    Salary history is not a valid justification for unequal pay under the federal Equal Pay Act, the Ninth Circuit says: In Rizo v. Yovino, the court has held that wage history is not a “factor other than sex” under the Equal Pay Act and cannot be used “alone or in combination with other factors [to] justify a wage differential.” This decision overturns the Ninth Circuit’s own 1982 ruling and creates a split with the Seventh Circuit. The Supreme Court may weigh in on the issue next.

    5. Tip of the Week

    Dr. Leo Flanagan, Co-Managing Partner for The Center for Resilience, returns with more on the upside of building a resilient workforce:

    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 “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered 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. The Supreme Court of the United States rejects a narrow construction for Fair Labor Standards Act (“FLSA”) overtime exemptions. The U.S. Court of Appeals for the Ninth Circuit held that certain auto service advisors were not exempt because their position is not specifically listed in the FLSA auto dealership exemption. For this ruling, the Ninth Circuit relied on the principle that such exemptions should be interpreted narrowly. In a 5-4 decision last week, the Supreme Court found no “textual indication” in the FLSA for a narrow construction. Applying a “fair interpretation” standard instead, the Supreme Court ruled that the exemption applies to service advisors because of the nature of their work. Paul DeCamp, from Epstein Becker Green, has more.

    This is an extended interview from Employment Law This Week® (Episode 112: Week of April 9, 2018), an online series by Epstein Becker Green. youtu.be/cRG-6jEcoMs

    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. Dr. Leo Flanagan, Co-Managing Partner for The Center for Resilience, offers some tips for building employee engagement through resilience.

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 112: Week of April 9. 2018), an online series by Epstein Becker Green. youtu.be/cRG-6jEcoMs

    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 “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C.

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

    1. High Court Rules Auto Service Advisors Exempt from OT

    Our top story: The Supreme Court of the United States rejects a narrow construction for Fair Labor Standards Act (“FLSA”) overtime exemptions. The U.S. Court of Appeals for the Ninth Circuit held that certain auto service advisors were not exempt because their position is not specifically listed in the FLSA auto dealership exemption. For this ruling, the Ninth Circuit relied on the principle that such exemptions should be interpreted narrowly. In a 5-4 decision last week, the Supreme Court found no “textual indication” in the FLSA for a narrow construction. Applying a “fair interpretation” standard instead, the Supreme Court ruled that the exemption applies to service advisors because of the nature of their work. Paul DeCamp, from Epstein Becker Green, has more:

    “What the Court did in Encino Motorcars was to overturn about 73 years of its own precedent. For the retail auto industry, we now have a ruling that under federal law, service advisors are exempt from overtime. Now, most car dealerships have several service advisors, and, so, the exempt status of these individuals will affect the payroll at these companies. There may still be issues under state law, but for now, this is a significant victory for the industry. More generally, this change in how the courts are going to look at FLSA exemptions across the board can affect virtually every industry in our economy.”

    For more, click here: https://bit.ly/2IsX3mj

    2. Congress Restricts Tip Pooling

    Congress rejects part of the Department of Labor’s proposed tip-pooling rule. Under the recently signed Consolidated Appropriations Act, Congress has amended the FLSA to address tip pools. The amendment prohibits employers from keeping employees’ tips or distributing any portion of the tips to managers or supervisors. Non-tipped, back-of-the-house employees, like cooks and dishwashers, may participate in tip pools when the employer pays at least the minimum wage and does not take a tip credit. The amendment also provides for enhanced damages and penalties when employees are deprived of tips.

    3. New Record for Dodd-Frank Whistleblower Awards

    The Securities and Exchange Commission (“SEC”) shows whistleblowers the money. The agency announced that it recently issued the largest whistleblower awards under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in history, affirming the payout of over $49 million to two whistleblowers and over $33 million to a third for information that led to successful securities law prosecutions. Dodd-Frank established the whistleblower "bounty" program in 2010, and the SEC reports that it has awarded more than $262 million so far, to 53 whistleblowers.

    For more, click here: https://bit.ly/2qd6QWe

    4. New Jersey Court Extends Unemployment to Resigning Employee

    A New Jersey court allows unemployment benefits for employees who quit. The state’s Appellate Division has ruled that employees who choose to leave their jobs may be eligible for unemployment benefits in limited circumstances. The panel found that a counselor who resigned was still eligible for benefits because her employer threatened termination. The employee had unexpected child care issues that would have affected her ability to work assigned shifts. If she did not show up to work and was then fired, she would have been eligible for benefits. The panel ruled that the employee was eligible for unemployment benefits despite her resignation.

    5. Tip of The Week

    Dr. Leo Flanagan, Co-Managing Partner for The Center for Resilience, offers some tips for building employee engagement through resilience:

    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 “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered 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. Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

    Big Data and People Analytics

    In this week's show, we take a look at the legal implications of an intriguing trend in the field of human resources: the use of big data and people analytics. These tools can assist employers in analyzing large data sets to help with hiring, recruiting, measuring productivity, evaluating fitness for promotion, and more. Frank Morris, from Epstein Becker Green, has seen data analytics emerge as an increasingly important area of his practice:

    “Businesses are using people analytics today to get away from what they've done in the past— just using headhunters, posting to job boards, seeking resumes, putting ads both online and in hard copy papers—to get a broader net, and to get a broader net of folks brought in who are going to be able to do the work that now needs to be done in an increasingly tight labor market, and to be diverse and inclusive at the same time. So, it really marks a change in the way the net is being cast, as well as some of the indicia that are supposedly being tested through the use of people analytics.”

    The opportunity to increase efficiency, reduce costs, and improve decision-making is huge. The vast majority of U.S. employers consider people analytics important, and investors see the market potential. In recent years, billions of dollars have been invested in backing companies making applications that use this technology. But Deloitte’s HR Consulting branch reports that, as of early 2016, only 8 percent of companies were actually using predictive analytics. One reason that employers have been slow to deploy the technology is that it carries its own risks of legal exposure. Nathaniel Glasser, from Epstein Becker Green, recently collaborated with Frank Morris on an article looking at the legal implications of this technology. We asked him about the risks:

    “The expectation with using people analytics is often that you'll reduce subjectivity and therefore decrease the risk of an intentional discrimination claim. Companies have to be careful that the algorithm that they use doesn't perpetuate biases or otherwise increase the risk of a disparate impact claim. Companies also must be aware of the record-keeping rules that apply to them, whether they're a private company serving the private sector, or a federal contractor that might be subject to different record-keeping requirements under the OFCCP.”

    For more, click here: Card TBD

    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 “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered 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® tracks the top developments in employment and labor law and workforce management in a matter of minutes every #WorkforceWednesday. Presented by law firm Epstein Becker Green. Learn more at ebglaw.com/employment-law-this-week/

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